HB 1412, the Tennessee Natural Marriage Defense Act, is a well-intentioned effort to resist the attempt by five Justices of the Supreme Court to rule that a law is unconstitutional and then, by judicial edict, substitute a new law for the one it ruled invalid. They rightly know, and I agree with them, that only legislative bodies can enact new laws or amend existing ones.
However, I have repeatedly said that any law that the legislature will not enforce is not worth the paper it is written on. I have told legislators that if they are willing to enforce the bill after its passage, they should vote for it, but if they are not willing, then they should not do so and falsely lead people to believe they have done something.
If the Natural Marriage Defense Act were to have passed and any state or, and just as importantly, any local official in Tennessee were to have disregarded it, thinking they had to comply with the Supreme Court’s ruling instead, then legislators would have had to be willing to remove that official from office for the new law to mean anything as a practical matter.
But legislators, including the sponsors of the bill, already have the power to do that. They did not need to pass a bill to have that power.
So, if the Supreme Court’s June decision is void, invalid, and unenforceable, as the sponsors of the bill assert, then there should already be, at the present moment, impeachment proceedings pending against the Governor and ouster petitions being filed against local officials. No such actions have been taken.
Because no such actions have been taken and, in response to my questions, no one, including the sponsors, said they would take such action, I reluctantly concluded that the Natural Marriage Defense Act, if passed, would have been ignored and unenforced.
Given that situation, I began to look for another way to challenge what the Supreme Court has done that does not depend upon the political willingness of the legislature or the Governor to enforce a new law and, today, as attorney for the Constitutional Government Defense Fund, I have filed a lawsuit in Williamson County Chancery Court, like the one pending before the Alabama Supreme Court.
The lawsuit will give our state court judges, who are accountable to the people and to the legislature, an opportunity to judge the Obergefell decision. The legislature can then take whatever action is then appropriate based on what our state courts, not the federal courts, say.
I believe this lawsuit is a good first step in responding to Obergefell and a step like HB 1412 can be reconsidered after that step is taken.
At this link are other questions regarding how HB 1412 would work that I found most non-lawyers had not considered.
See the flowchart of possible outcomes.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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