Earlier this year a state House subcommittee voted down a bill that would have forbidden every state and local official from giving any recognition to an order of a court that authorized or required same-sex “marriage.” Now an effort is underway to bring that bill straight to the House floor for a vote. The issue is not as straightforward as most think, and it brings to mind the lament of Hosea, “My people are destroyed for lack of knowledge.”
The knowledge of which I speak is a fundamental legal principle that most people would not know because they have not been to law school. But that doesn’t make knowledge about that legal principal any less critical. Failure to understand it could lead to destroying the very thing conservative evangelicals want—the preservation of marriage as the union of a man and a woman and the preservation of our state’s sovereignty.
The critical legal principle is this: Unless a law is “palpably unconstitutional on its face,” it is presumed constitutional until a court judges it to be unconstitutional. This rule immediately creates a problem when it comes to marriage, because we don’t know what Tennessee’s marriage law is for state residents.
The Constitutionality of Tennessee’s Marriage Law Was Not Decided
That sounds preposterous, because we all know the U.S. Supreme Court ruled on marriage last summer. But Tennessee has never had its “day in court” on the issue of whether Tennessee’s law that restricts the issuance of licenses to only “male and female” applicants is unconstitutional. That law was not involved in the lawsuit filed against Tennessee (Tanco v. Haslam).
Consequently, some would say that our law restricting marriage between residents of Tennessee to a man and a woman is still the law. If so, no new legislation regarding marriage is needed. It just needs to be complied with.
Others would say that the law, because it restricts marriage to a male and female, is “palpably unconstitutional” because of the reasoning of Obergefell. But, if that’s true, there is no marriage law at all.
Which argument is correct? The answer is, “We don’t know until a court rules between these two competing legal arguments.” And that’s why we have filed a lawsuit.
Does House Bill 1412 Really Do Anything?
What does that have to do with the bill to affirm natural marriage?
If the law is still valid, because not specifically ruled invalid, then the bill to affirm that marriage is the union of a man and a woman accomplishes nothing new. If the law is not still valid, then the bill accomplishes nothing because no marriage license law exists. For it to “do something” in this instance, the marriage laws would have to be re-enacted.
So what should supporters of marriage do legislatively if they want to support marriage?
What Should Legislators Do?
If the law is not being applied as written by our state and local officials, which is probably the case, then the legislators who want our law upheld don’t need to pass any new law. They simply need to begin impeaching the Governor and the constitutional officers and file legislation to make it easier for citizens to file proceedings in state court to remove local officials, because they are violating the existing law.
But, the problem with that is this: If the law they are ostensibly violating is actually ruled invalid by the courts in Williamson and Bradley Counties, then the grounds for impeachment and ouster would be different; the various officials are then doing things they are not authorized by law to do.
The ‘Right to Marry’ Issue
Here is the other critical legal point. The fact that the U.S. Supreme Court said that same-sex couples have a “right to marry” is not determinative.
Here’s what the Tennessee Supreme Court has said:
“a mandatory non-self-executing constitutional provision delegates to the legislature the execution of a power coupled with a command which, it is true, the Legislature may disregard and the Courts are without authority to enforce performance of it by affirmative decree.”
That is exactly what a “right to marry” is, a non-self-executing right.
Waiting for the Tennessee Court Decision
So, to be honest, a bill to reaffirm marriage is premature until our state courts have ruled on whether our marriage license law is still valid or invalid, and it could lead to some bad results and some dead ends (see the attached flow chart of possible outcomes). It is only at that point that the legislature will really know what it needs to do.
If the state courts rule that the existing law is valid and that there can be no same-sex “marriages” until the legislature decides to amend the law, then the legislature needs to do nothing to prevent same-sex “marriages.”
If the court rules that there is no marriage license law for anyone, then the legislature needs to decide whether to do nothing and simply allow men and women to marry under common law or pass a same-sex “marriage” law.
If the court rules that it has the power to order County Clerks to issue marriage licenses even in the absence of statutory language to that effect, then the legislature needs to address itself to those judges.
Let’s hope that enough people understand these legal principles and the need for this process to play out so that the legislature knows what it really needs to do.
If they don’t, then the legislature may pass a bill that gets these critical legal issues dragged into unfriendly federal courts that have proven that they do not understand federalism and the separation of powers. That’s not where advocates for marriage want to find themselves. And unless we’re going to just pretend that federal courts do not exist, then another ruling by them could just kill marriage. That’s not what advocates for marriage want.
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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