This proposal to challenge Obergefell will:
- keep local officials from being sued in federal court and hauled off to jail for contempt for not obeying a federal court order,
- allow us to fight the really important legal issue—the lawfulness and constitutionality of Obergefell—in state court, where there is some measure of judicial accountability, rather than federal court,
- allow attorneys of our choosing to argue over the effect of Obergefell,
- eliminate the risk that the Attorney General will refuse to defend legislation,
- eliminate the risk of the Governor vetoing the legislation or choosing not to “enforce” any legislation.
Pastors and other concerned citizens are fighting the issue of the legitimacy and effect of Obergefell in state court, not federal court, through a lawsuit filed by them over the continuing validity of the marriage license laws after Obergefell.
The point of the lawsuit is this: If Obergefell was a constitutional exercise of the judicial powers under the U.S. Constitution, then our marriage license laws are invalid, because the Court ruled they were invalid and the only branch of government constitutionally authorized to replace or amend a statute is the Tennessee General Assembly, which has not enacted any new marriage license law to replace the one the Court said was invalid. The only judicially honest alternative for the court would be to hold that the legislature would have enacted the marriage license law even if it allowed same-sex “marriage.” However, our argument is that such could never have been the intention of the legislature since sodomy was, at the time, a crime.
This lawsuit will raise the same legal issue currently pending before the Alabama Supreme Court. There will now be two states, by legal and constitutional methods, questioning the ruling in Obergefell.
Hopefully the legislature, by resolution, will officially support the lawsuit, sending a signal to the courts that the constitutional issues raised by the lawsuit should be taken seriously. Remember, by a two-thirds vote of each house, the legislature could remove a judge that violates the separation of powers by telling the legislature what laws it must pass.
NOTE: Remember that lower federal courts and state courts both have jurisdiction to determine how a U.S. Supreme Court decision should be applied to state law. There is nothing subversive or underhanded or unconstitutional about suing in state court to determine how a U.S. Supreme Court decision applies to other state laws. And remember that state courts and lower federal courts can come to conflicting decisions. If they do come to conflicting conclusions, then the U.S. Supreme Court would almost have to take up the issue. By that time, who knows who will be on the U.S. Supreme Court.
NOTE: Same-sex “marriage” licenses will continue to be issued during the course of the lawsuit, but all those “marriage” licenses (along with male-female marriage licenses) are subject to being declared void because the lawsuit is asking the state courts if those licenses were validly issued. Obergefell ruled that the laws authorizing the issuance of those license were invalid! Arguably, a license issued pursuant to a void law should be void as well.
NOTE: If the state court’s decision results in our marriage license laws being ruled invalid, the invalidity of those laws should allow men and women to be married under the common law. Because Tennessee is a common law state and Tennesseans have all the rights and privileges they have always had under the common law unless the state’s statutes “repealed” those rights, the invalidity of the marriage license law should eliminate any state law barrier to men and women exercising their common law right to marry.
NOTE: Once all the litigation is concluded, the legislature can pass a law that would validate all marriages solemnized between a man and a woman pursuant to a license issued after the Obergefell ruling. This same thing was done in the past to validate marriage performed in Tennessee during the Civil War when Tennessee was not a member of the Union.
There is nothing the legislature, the Governor, the state Attorney General, or the U.S. Supreme Court can do to stop the state court lawsuit. And it is in that state court lawsuit, not the federal courts, that the fate of same-sex “marriage” would be determined. It will crystalize and narrow the issue to whether federal courts really have the power to force state legislatures to pass laws the courts thinks wise.
That is what the Supreme Court purported to do in Obergefell, pass a law for the state and, so far, everyone has acted as if the Supreme Court can pass a law. However, the U.S. Constitution is very clear that federal courts have no power to enact or amend state laws, because, the separation of powers puts that power solely in the hands of the legislative branch.
To learn what you can do to support the lawsuit and other efforts to challenge the Obergefell ruling, go to the Reclaiming Our Liberty main page. Read the PDF of the Lawsuit that was filed on January 21, 2016.