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Will the Next Governor Challenge the Prevailing Myth?

As I was writing a brief last week for the Tennessee Supreme Court, I couldn’t believe some of what I said as my thoughts flowed through the keyboard and onto the page. What I wrote exposes a great myth held by a majority within our society, and I suspect the next governor will have to deal with it.

Can the U.S. Supreme Court Be Questioned?

The brief was in support of an application for permission to appeal. I was asking the state’s Supreme Court to hear an appeal from a decision by the Court of Appeals. The appellate court held that there were no uncertainties about the ongoing validity of our state’s marriage licensing statutes, even though the U.S. Supreme Court held in Obergefell v. Hodges that statutes like ours were “invalid” because they exclude same-sex couples from getting a marriage license.

It appears that this holding by the U.S. Supreme Court must be explained away, because that Court also held that same-sex couples have a right to marry under state law.

But how, my clients’ asked, does anyone exercise the right to marry if the existing licensing statute is “invalid”?

The Consequences of Blind Allegiance to the U.S. Supreme Court

It would appear that many in our society, including our governor and attorney general, believe the state must simply do whatever the U.S. Supreme Court says do, even if what it says we are to do can’t be done because the law by which it would be done is invalid.

Here is what I told our Tennessee Supreme Court:

[A great shift in the understanding of the separation of powers and the dual sovereignty embedded in federalism and the 10th Amendment] will come if states continue to assume that Obergefell stands for the proposition that the federal judiciary has the power under . . . the U.S. Constitution to require states to issue licenses for a wholly new type of legal relationship that has never before been licensed by those states and that its legislature refuses to authorize by new or amended statutes.

The Myth of Federal Judicial Supremacy Revealed

A well-credentialed lawyer-friend of mine who read the brief had this to say:

The tough issues you’ve raised require judges to set aside myths that they have believed because “everybody” seems to share the myth. The myth is that, if the United States Supreme Court says something, that is the law of the land, and every other court in the land just has to conform. Any statute or constitutional presumption or any common law that stands in the way just has to be conformed to the word from on high. This is horrifyingly frightening, but, probably, 90 percent of our colleagues at the bar believe this.

I suspect his estimation regarding the legal profession is correct. Just about every attorney I’ve spoken to about the lawsuit I’ve filed blew me off. If they did half listen, they said, “You can’t win. The Supremacy Clause means Obergefell is ‘the law of the land.’” Just as my friend said. That’s a scary response!

The Tyranny the Myth Unleashes

Consider what this flawed1 understanding of the Supremacy Clause means in light of the fact that the U.S. Supreme Court said the “right” of same-sex couples to marry was part of the “liberty” protected by the 14th Amendment. That “liberty,” the Court said, is why the state has an affirmative duty to issue marriage licenses to same-sex couples.

Here’s how I described in the brief the tyranny that results from this conjoined view of liberty and the Supremacy Clause (modified a bit for this context):

If the Supremacy Clause now allows federal courts to rewrite state statutes or create new types of legal relationships and then impose on every state a requirement that the relationship be licensed, there is no end and no limit to the scope of this new power in the federal judiciary. This power would essentially allow federal courts to use “liberty” under the 14th Amendment to obliterate at their whim both the dual sovereignty of federalism and the separation of powers between the judicial and legislative branches. That’s because the meaning of “liberty” under the state’s interpretation of Obergefell combined with this new understanding of the Supremacy Clause means federal courts now have the power to interpret “liberty” so as to now require positive, affirmative action by a state’s legislative body or circumvent that body’s constitutional prerogatives if it asserts its independence by not conforming its statutes to a command from a branch of the federal government that it thinks unconstitutional.

If the U.S. Supreme Court is allowed to get away with judicial edicts like the one in Obergefell, then, in the name of liberty, that Court will have destroyed the liberty that was to be protected by the Constitution’s separation of powers and creation of dual sovereigns.

Will the Next Governor Be Willing to Challenge the Myth?

This kind of power means the U.S. Supreme Court can just decide what laws it thinks every state needs for citizens to enjoy their “liberty,” and, if the next governor buys into the myth as did our current governor, then we’ll just bow down, go along with whatever the Court says, and disregard the fact we have a state legislature that has a jurisdictional power that must be respected.

I suspect that at some point over the next four to eight years, our next governor will be confronted with a situation in which he will have to choose between believing the myth or challenging it. If he has the courage to say “no” to the Court, he just might restore constitutional government for everybody.


  1. It is flawed because the U.S. Supreme Court itself has said that the Supremacy Clause “is not an independent grant of” power to the federal government. Murphy v. N.C.A.A. “Instead, it simply provides “a rule of decision. . . . It specifies that federal law is supreme in case of a conflict with state law.” Therefore, a federal court decision is “supreme” only if it falls within the nature of the “judicial power” conferred under the U.S. Constitution to federal courts and the power is exercised in accord with the Constitution itself. Violating the separation of powers and federalism is not a constitutional exercise of the judicial power, and Tennessee’s Legislature has been right not to conform our statutes to the U.S. Supreme Court’s unconstitutional edict.

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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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