Sometimes you stumble on things and think you have had moments of inspiration and new understanding, only to find out that you are borrowing an idea from someone who came before you. I felt that way last week after I filed a lawsuit over how the U.S. Supreme Court’s Obergefell decision applied to Tennessee’s marriage law. I later realized that the NAACP had already successfully used the approach I was taking.
To understand how the lawsuit I filed is consistent with what the NAACP had done before me, you need to appreciate that the Supreme Court’s Obergefell decision said “state laws [on marriage] are invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”
Asking a court (in this case, a state court and not a federal court) to determine how a U.S. Supreme Court decision applies to state law is exactly the same strategy the NAACP used to bring about the decision in Brown v. Board of Education!
Brown v. Board of Education was the case that overturned Plessy v. Ferguson, in which the Supreme Court, 58 years earlier (that’s a long time to wait for correction of a Supreme Court wrong!), articulated the principle that as long as the things by which blacks and whites were separated were “equal,” then the equal protection clause was satisfied.
This was the “separate but equal” doctrine, but it’s important to note that Plessy involved laws segregating passengers traveling by train. It had nothing to do with education. Nothing! Why that was important had never dawned on me until I filed the marriage lawsuit last week.
It’s important because African-Americans, usually with the support of the NAACP, began filing lawsuits asking if the “separate but equal” doctrine applied in other areas of the law, and wisely they picked a sensitive area of the law in which to inquire—education—that everyone would care about. They also sued where they thought they might have a good judge to hear the case.
The Brown decision actually notes the litigation strategy, though a bit less directly:
“The doctrine of ‘separate but equal’ did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.”
Eventually, after lawsuits involving how Plessy applied to education, the Supreme Court saw the light. The doctrine was not only constitutionally (and morally) unsound, but it was proving to be a nightmare in its application to all kinds of areas of law that the Court had perhaps not considered. Finally, the Court reversed its decision.
In the present situation, we need to appreciate that the constitutional theory in Obergefell did not just take away the right of the states to define marriage, which is the sole focus of some, but it took away their rights over the whole field of family law, gun rights, health care, education, religious liberty, and taxation. This is a much bigger issue than same-sex “marriage,” as big as that one issue is!
However, the only way to “remove” that constitutional theory from the books is get Obergefell reversed, and the only way to do that, short of succession or Congress waking up to protect the Constitution, is by filing a plethora of lawsuits in key states over the validity and applicability of Obergefell to a multitude of state laws that were passed on the assumption that marriage was the union of a man and a woman.
If declaratory judgment actions were brought over our adoption laws, intestacy laws, estate administration laws, and tax laws, then the Supreme Court of the United States might see the mess they have made of the host of marriage-related laws that are found throughout a state’s code. And who knows who will be on that Court by the time these cases start arriving on their docket.
The problem those who understand the constitutional overreach in Obergefell face isn’t that there are no good lawsuits ripe for filing but that we have too few who are willing to stand up either by suing or representing those who are willing to sue.
But if some will stand up, then we can be encouraged that the path we are on has been tried successfully by those who have come before us.
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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