What did the U.S. Supreme Court really do when it ruled in the case of Obergefell v. Hodges on the constitutionality of Tennessee’s law defining marriage as the union of one man and one woman?

In reality it laid the groundwork for a second American revolution. The purpose of this paper is to explain why this revolution is needed, the nature of that revolution, and what’s at stake if we do not pursue it.

But first consider some of the practical implications of the Court’s ruling.

Doctrine of Elision

The first thing the Court’s decision did was put into question every marriage-related law in Tennessee. The reason is tied to the court-created doctrine of constitutional construction called elision.

“The doctrine of elision allows a court, under appropriate circumstances when consistent with the expressed legislative intent, to elide or simply excise an unconstitutional portion of a statute and find the remaining provisions to be constitutional and effective” (Planned Parenthood of Middle Tennessee v. Sundquist, Tenn 2001).

The doctrine of elision is analogous to what a surgeon does who only removes the cancerous tissues and not the whole organ.

But, on the flip slide, when a court finds that the legislature would not have enacted a certain law BUT FOR the validity of another law or part of that law, then the court will strike down all the law.

All of Tennessee’s marriage laws were based on the assumption that the definition of marriage as one man and one woman was the law. So, arguably, one could assert that every other marriage-related law is now unconstitutional or at least its constitutionality should be in doubt, since the underlying law defining marriage on which those laws were based was ruled unconstitutional. For example, one could reasonably argue that our law allowing two parties to get a license is no longer valid, because it is unlikely that the legislature that passed it decades ago would have done so had the “two parties” referred to in the law included two men or two women!

Reconstructive Surgery on the Due Process Clause

The second thing the Court did is perform reconstructive legal surgery on the Due Process Clause of the Fourteenth Amendment. The Court fashioned the Fourteenth Amendment into a constitutional bucket into which it can dump new, never-before-heard-of constitutional rights upon agreement of any combination of five justices and, in doing so, overrule whatever state law is in question. The Court gave itself permission to effectively write the Tenth Amendment out of the U.S. Constitution.

For example, John Jay Hooker brought out the potential implication of this in the recent lawsuit over physician-assisted suicide. In this case, his lawyers cited the Obergefell decision as constitutional Supreme Court authority for the argument that the state’s ban on assisted suicide was unconstitutional.

To understand this, you must consider the 1997 Supreme Court case Washington v. Glucksberg. In that case, the United States Supreme Court ruled in that there was no constitutional right to physician-assisted suicide. So, you say, “Shouldn’t that have settled the issue in Mr. Hooker’s case? No. Not so fast, because Obergefell effectively overruled the reasoning in Glucksberg.

In Glucksberg the Supreme Court said that newly asserted constitutional rights (those not found in the text of the Constitution) must be somehow firmly rooted in our history before the Supreme Court will recognize them. Assisted suicide was not firmly rooted in our history, and so Glucksberg said there was no constitutional right to it.

However, that firmly-rooted-in-history principle would have been a barrier to the current Supreme Court “finding” a new constitutional right to same-sex “marriage.” After all, same-sex “marriage” was not firmly rooted in our history. So, the Obergefell Court had to scrap the Glucksberg notion that rights had to be tied to history, and they did.

In its discussion of Glucksberg, this is what the Obergefell Court said about the “restriction” on new rights:

“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

In other words, the “past”—meaning history—doesn’t matter.

That’s why Justice Roberts said in his dissenting opinion in Obergefell that “the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process.”

But if history and tradition are no longer barriers to finding new rights and inserting them into the Due Process Clause, then what is the barrier?

Not Just New Rights But Eroding Existing Ones

As the dissenting justices said, the “reasoned judgment” of five people on the Supreme Court can find new rights evolving as society evolves. This means our Constitution is always evolving without the approval of the people or of the states.

Here is the third implication of the Court’s decision—just as that decision may give rise to new constitutional rights, it also has implications for the erosion of other express constitutional rights.

Technically, the Court did not say there was a constitutional right to same-sex “marriage;” rather the majority said that our understanding of the meaning of marriage had evolved. So, here is an example of the potential erosion of existing rights that gun rights enthusiasts might appreciate. To be honest, it would have been better for them had the Court said that there was a constitutional right to same-sex “marriage,” because in the Court’s rationale are the seeds for re-writing the meaning of the “right to bear arms.”

If marriage, a term not found in the Constitution, can evolve to mean what it has never meant, then could not a term in the Constitution, the right to bear arms, not also evolve to mean something other than what it says? Could it not be “interpreted” to restrict the right such that you could only have a gun for purposes of home security to protect against home invasion? The Court could say that the interest of the public in being secure from shootings by unstable people outweighs one’s right to personal security when out in public.

The Second American Revolution?

But now we come to the issue I promised to discuss at the beginning. What is this second American revolution?

To understand the revolution, you need to read carefully and understand the actual holding of the Court. Did the Court really hold that our marriage law in Tennessee was unconstitutional? Arguably it did not, because if it had expressly struck down our marriage law, no one, including heterosexual couples, could marry.

Here is the actual holding:

The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.

But here is the question: “On the basis of what law in Tennessee may same-sex couples exercise this right to marry?

The law in Tennessee is very clear. County Clerks are created by the state Constitution. The state Constitution is also clear about what powers County Clerks have. It says, “Their qualifications and duties shall be prescribed by the General Assembly.” Hence, they are not a division of any other branch of government and do not answer to any other branch (judiciary or executive, i.e., Governor or judges).

So, if the license law was premised on the assumption that the two parties who can get a license must be of the opposite sex, and if that law has been held unconstitutional (or is unconstitutional because the doctrine of elision can’t “save” it),  then there may well be no law in Tennessee authorizing anyone to get married.

If the license law, as passed decades ago, was understood to apply only to a man and a woman, which is the case since sodomy was a crime, then by what authority does that law now mean two men or two women? Can a court “interpret” a law to mean what it clearly never meant?1

Now hold that thought and think for a moment about what courts can and cannot do. In Federalist Paper No. 78, Alexander Hamilton wrote of the inherent limitation on a court’s power:

“if the Courts ‘exercise WILL instead of JUDGMENT, the consequence would . . . be the substitution of their pleasure to that of the legislative body.'”

In other words, a court—including the Supreme Court—can exercise judgment; it can do the following:

• express a judgment as to what a law means through interpretation
• judge a law to be constitutional
• judge a law to be unconstitutional

But it cannot exercise “will.” Now what does this mean?

Webster’s 1828 dictionary, which would best reflect how that word would have been understood in the late 1700s, says this:

“The will is directed or influenced by the judgment. The understanding or reason compares different objects, which operate as motives; the judgment determines which is preferable, and the will decides which to pursue. In other words, we reason with respect to the value or importance of things; we then judge which is to be preferred; and we will to take the most valuable.” (emphasis mine)

In other words, a court can say what is “preferable” as between two positions, but it is without the “will” or we might say, the “power” to execute or carry out that judgment.

Let’s put this in more modern words, those found in the very last paragraph of Justice Scalia’s dissent in Obergefell:

“The Judiciary is the ‘least dangerous’ of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm’ and the States, ‘even for the efficacy of its judgments.'”(emphasis supplied)

In other words, our Clerks would be well within their rights to say that the Supreme Court has placed them in an untenable situation. The Supreme Court has said that same-sex couples may marry, but the legislature has not said that or passed any law to that effect. In the words of Justice Scalia and Alexander Hamilton, the legislature has not come to the aid of the Court by passing a law that the Clerks can follow that gives “efficacy” to the Court’s opinion.

As one of Tennessee’s most famous native sons, President Andrew Jackson, said in a letter to John Coffee regarding the Supreme Court’s decision in Worcester v. Georgia (1832), “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

And if that state, perhaps Tennessee, will not do the Supreme Court’s dirty work for it and will protect our Clerks from lawless federal judges seeking to exercise will and not judgment, then maybe we, the states, can breathe some life back into the Tenth Amendment. That is what is at state—the continuing vitality of federalism and state sovereignty and the balance of powers between an arrogant Supreme Court and the power of the people of the states from whom their powers have come.

As Justice Scalia said:

“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Let’s pray that Tennesseans think it is time to do so.

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NOTES

  1. The correct legal answer is no. However, that is exactly what Justice Roberts did in the most recent case over Obamacare interpreting the words “state exchanges” to mean “federal or state exchanges.” This, too, was an unconstitutional exercise of authority in the nature of “enacting” an amendment to a law, a function given only to the legislative body.

— David Fowler, President of the Family Action Council of Tennessee