How Should Tennessee Resist the U.S. Supreme Court?

This week committees in the state legislature voted on bills related to educational vouchers and on the confirmation of state Supreme Court justices to fill vacancies. Important legislation. But the top story was how best to respond to the U.S. Supreme Court’s decision last summer in Obergefell v. Hodges. Here’s what you need to know.

Analyzing the Tennessee Natural Marriage Defense Act

The first major story was House Bill 1412 , the Tennessee Natural Marriage Defense Act, which said that all state and local officials should, for all purposes of state law, disregard any court decision purporting to authorize same-sex “marriage.” It was a well-intentioned effort to resist Obergefell, but it had two practical problems that many did not understand.

First, consider this example. A local official employs an individual in a same-sex “marriage” entered into last summer while the couple was living in Kentucky. The local official could have been sued in federal court if he or she refused to provide the employee with group family health insurance under the local government’s employee benefit plan. To give the employee coverage would have violated section (e) of House Bill 1412, because the local official would have been giving recognition to a same-sex “marriage” based on a court decision.

Furthermore, the bill provided no legal representation to the local official from the state when sued. Like Kim Davis in Kentucky, the local official could have been thrown in a federal prison if he or she refused to obey a federal court order directing him or her to put the employee on the health insurance plan. Rep. Pody knew this and didn’t ever deny it, not even in the committee hearing this week.

Second, had the bill become law, it would probably have been ignored and not enforced. The Governor has already said he believes Obergefell requires the state to issue same-sex “marriage” licenses, and local County Clerks, who, like Kim Davis, could have already refused to issue same-sex “marriage” licenses, have gone along with Obergefell, too.

My point is that a law that is going to be ignored and not enforced is not worth the paper it’s written on. I told legislators to vote for the bill if they were willing to take the steps necessary to enforce the law—to impeach the Governor and the other constitutional officers and oust their local officials. But I also told them not to vote for the bill if they were not willing to take this necessary second step—removing officials who didn’t follow the law.

In other words, I told legislators, if you vote for the bill, then be ready to purge the state of all state and local officials who disagree. Interestingly, legislators could have already taken those steps. Impeachment proceedings could have already been filed. The bill didn’t need to pass for those steps to be taken. Learn more about the issues created by House Bill 1412.

Filing a Lawsuit to Challenge the Obergefell Ruling

Because no such actions have been taken and because I didn’t think the people of Tennessee would really want legislators to vote for a bill that threw their local elected officials “under the bus,” I began to look for another way to challenge what the Supreme Court did. I wanted a way that did not depend upon the political willingness of the legislature or the Governor to enforce a new law.

The way I came up with was to file a lawsuit over the constitutional problems created by Obergefell in Williamson County Chancery Court, like the one pending before the Alabama Supreme Court. If other ministers in Tennessee are willing to raise these issues, additional lawsuits can be filed. Information about the lawsuit can be found at this link.

The lawsuit will give our state court judges an opportunity to judge the Obergefell decision. The legislature can then take whatever action is appropriate based on what our state courts, not the federal courts, say.

Unlike federal judges, Tennessee judges do have some accountability to the people. Trial judges run in contested elections and appellate judges stand for retention elections. Plus, Article VI, Section 6 of the state Constitution allows the legislature, by two-third’s vote, to remove judges from office so long as they enter into the record the “cause or causes of removal.”

The Constitution was breached by the U.S. Supreme Court last year when five Justices jettisoned the principles of federalism and separation of powers by telling the state legislatures of more than forty states what marriage laws they must have. This week was the opening salvo in the post-Obergefell battle to restore constitutional government to America.

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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