Justice Alito said it best and most succinctly at the end of the opinion he wrote in dissenting from the majority’s opinion in Obergefell in which he was joined by Justices Scalia and Thomas:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

Why might he write that? Here’s his explanation:

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

In other words, if five Americans, strictly by virtue of the fact they hold the title “Supreme Court Justice” can say there is a right to have government take affirmative action to do something—like issue a license that no enacted state law has authorized—as opposed to merely refraining from action, and the only reason for them not to do that is whether others “are willing to tolerate it,” then, to that extent, the U.S. Supreme Court is the supreme legislative body over the states and, presumably, over Congress, too.

CLEAR EVIDENCE OF A RIPPLE EFFECT

Allowing this kind of power to be exercised by a “bare majority” of nine Americans explains why the confirmation of justices to the U.S. Supreme Court is so fierce—our elected U.S. Senate is deciding who will be supreme in regard to establishing public policy for the nation and how much power these supreme rulers will allow to them. Confirmation is the ultimate battle for the balance of powers in our country!

It would not have to be this way if Congress would exercise the other checks it was given to keep the federal judiciary from operating outside the scope of its constitutionally delegated powers, but it hasn’t and, sadly, there is no reason to expect it will.

IS THERE A SOLUTION? YES!

Actually, Justice Alito’s concern is based on an assumption that no other governing bodies will use the authority they have under the state and federal constitutions to check the pretense to power asserted by the Obergefell majority.

Here is what he said: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” And, in his assessment of the past, his concern is justified. But . . .

Justice Alito, along with Justice Thomas and Chief Justice Roberts, did not see the cure that Justice Scalia subtly suggested—the people of the states, like those who support this initiative, confronting the Court with its impotency when it comes to enforcing judgments like the one in Obergefell.

UNDERSTANDING JUSTICE SCALIA’S SUGGESTED SOLUTION TO THE ALITO OBSERVATION

Here is how Justice Scalia framed his suggested solution, the one being followed by the God-Given Marriage initiative.

First, alluding to Proverbs 16:81¹, he recognized the same prideful arrogation to power that Justice Alito noted, but he went on to note where such always ends, even if later rather than sooner:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.

In his next sentence, Justice Scalia quoted Federalist Paper No. 78 to note the proper constitutional limits of the judiciary’s power—simply to pronounce a judgment to resolve a particular dispute among particular parties—and to note who within civil government is charged with giving those judgments effect: 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.”

In other words, the Court does not have

• any real means of “force” by which it can give effect to its judgment, other than power to hold the official against whom the judgment was entered in contempt of court, and,
• it has no “will,” meaning legislative power to make a law that imposes on the whole of the people the holdings underlying the reasons for its judgment.

And notice this important bolded addition to his quote from Federalist Paper No. 78: and the states. What Justice Scalia was saying is that when a judgment is entered against the state, the state must decide whether to give effect to that judgment.

This last point is an important but ignored constitutional check and balance. It means the U.S. Supreme Court can hold the particular state or local official against whom the judgment was entered in contempt of court if that official does not give effect to (obey) the court’s judgment; however, the Court cannot hold in contempt any officials who are not subject to that particular judgment (no “force”) nor can it impose  (no “will”) on the whole of the people of a state a law that conforms to the holdings that explained the Court’s judgment.

This is what Justice Scalia meant with his concluding observation, which was actually a subtle challenge to state officials:

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.

This initiative is designed to take the step Justice Scalia commended to us. If the Court wants to announce new “rights” that depend on legislation for them to be given effect, then just don’t pass the legislation. Courts have no power—they are impotent—to make any legislative body enact a law.

Thankfully, the General Assembly in Tennessee enacted House Joint Resolution 529 in 2016 in response to Obergefell. Here are the resolving clauses to that resolution, and you’ll notice it even quoted Justice Scalia’s “solution”:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ONE HUNDRED NINTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, that this body expresses its strong disagreement with the constitutional overreach in Obergefell v. Hodges that, in violation of the constitutional and judicially recognized principles of federalism and separation of powers, purports to allow federal courts to order or direct a state legislative body to affirmatively amend or replace a state statute.

BE IT FURTHER RESOLVED, this body concurs in the opinion of Chief Justice John Roberts, who in his dissent in Obergefell v. Hodges, said, “the Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it,” and acknowledges the reminder of Justice Antonin Scalia in his dissenting opinion in Obergefell v. Hodges that “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.”

IS THERE HISTORICAL PRECEDENT FOR TAKING SUCH A POSITION WITH RESPECT TO DECISION OF THE U.S. SUPREME COURT?

Yes. Perhaps the last federal official to understand these three points and give voice to them was President Abraham Lincoln, who, in his first inaugural address, made this constitutionally correct statement following the U.S. Supreme Court’s awful decision involving former slave Dred Scott:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Clearly, Lincoln’s last sentence has proved to be the case with respect to the Obergefell decision—it was a political, not constitutional, decision, so we should not be surprised that resistance to its unconstitutional overreach will be used for “political purposes” by those the Court politically favored. They will use all the political power they can muster to prevent that overreach from being checked by those who, because of their political office, have the power to do so.

And that is why this initiative is coming from the people and being directed to their elected representatives.

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[1] “Pride goes before destruction, and a haughty spirit before a fall” (Proverbs 16:8, NKJV).

To answer this question, one must first understand that a court’s judgment resolves a particular dispute between particular parties regarding particular issues. That is all it does.

Court opinions are simply the explanation the court gives for its judgment—telling the parties and those who are interested why the court entered the judgment it entered. In law, they have no legal or operative effect.

So a court’s judgment is not a law and it is not law except, you might say, as between the parties involved in the lawsuit in that it tells the parties, as between themselves, what they must do or stop doing.

With that as background, when a state law is found by a court to violate the U.S. Constitution, the court enters an injunction.

An injunction, as the word implies, tells the party enforcing or administering the law to stop doing what they are doing.

The media often reports that a court’s injunction “invalidated,” “voided,” or “struck down” the law, but those are colloquialisms. The law is still “on the books;” it’s just that the official who has been applying or administering the law can no longer do so without being in contempt of the court.

That’s why, if an opinion enjoining a state law is later overruled, the law doesn’t need to be “re-enacted.” It’s still there; only the reason for not enforcing or administering the law is no longer there.

But here’s the key thing: injunctions enjoining the enforcement of a law do not create a new or different law or revise the law.

If an injunction did that, the court would be making law, and that would violate the power given by the people to their representatives to make laws. Courts can’t make laws.

If courts could make laws, replace laws, or amend laws, representative government would be dead—judges don’t “represent” anyone.

But when a federal court purports to do that for a state—make, replace, or amend state laws it thinks unconstitutional—then the power of the people to govern themselves according to their own laws enacted by their representatives would effectively be dead.

It would be as if federal judges had become the great state legislature in the sky, giving permission to the states to keep those laws they think are constitutional, but giving states new or amended laws if they think the existing state law is unenforceable.

So, when Tennessee officials treat the judgments entered by the Supreme Court as making a new marriage license law for Tennesseans or as in some way changing or amending the existing state marriage license law, they are allowing the judicial system to kill representative government and the principles of federalism, the idea that our nation is made of two different governing bodies—a federal government of only delegated powers and states, to whom all powers not delegated to the federal government are reserved.

Our elected officials, by treating the judgments in Obergefell and Tanco v. Haslam as having done more than enjoin the state from enforcing the specific state laws that were enjoined, are abdicating their responsibility to make sure federal courts stay in their lane, in terms of the powers they can exercise over the states.

Because judicial power is ultimately only exercised through a court’s judgment against particular parties, and because injunctions only prevent enforcement of a law judged unconstitutional, it is wrong to say the U.S. Supreme Court “legalized” same-sex marriage. All the holdings in the Obergefell Court’s opinion did was explain why the Court thought certain types of state laws limiting marriage licenses to same-sex couples were no longer constitutionally enforceable. But that is far different from saying there is now a new state marriage licensure law in every state.

So, if that’s all a court’s judgment enjoining a state law can do, how do same-sex couples exercise their right to marry under the 14th Amendment? Check out Question 5 for the answer.

To understand the short answer to this question, one needs to understand a few basic legal and constitutional principles.

The long-standing rule in legal practice is that all laws are to be presumed constitutional. If every citizen or public official could decide for himself or herself if the law was constitutional, it would be lawlessness and chaos.

So, unless and until a legal challenge is brought by one or more people, Tennessee’s elected officials are supposed to obey the law.

The people who bring lawsuits over state laws generally fall into one of two categories:

• The first category of people who would bring a legal challenge would be those who are negatively impacted by the law, in which case they would ask the court to enjoin (prohibit) continued enforcement of the law. A same-sex couple denied a license by a county clerk would fall into this category.
• The second would be those who have to administer or comply with the law and are uncertain about the law in some regard. Perhaps they don’t understand what the law means and, therefore, don’t know or aren’t sure about what they are supposed to do. Perhaps they may think the requirements of the law they are to administer or operate under are unconstitutional. This second group of plaintiffs usually asks the court to declare what the law is. These are known as declaratory judgment actions.

An important and overlooked fact is those categories of people can only sue in federal courts over certain kinds or types of “cases” and “controversies,” those being the words used in Article III of the U.S. Constitution to describe when the federal court can exercise its jurisdiction or authority.

In other words, courts can’t just run around issuing opinions about whether they think a law is or is not constitutional just because some person curious about the issue brings a lawsuit.

What that means and what the words “case or controversy” mean is that a federal court can only enter a judgment and issue an opinion explaining its judgment if there is really a controversy between the two sides who make up the lawsuit.

What this means, for example, is a citizen of Tennessee who lives in Nashville can’t sue the City of Memphis claiming that an ordinance adopted by Memphis and applying only to residents of Memphis is unconstitutional, even if, in fact, the ordinance is clearly unconstitutional. The Nashville resident has no “controversy” with the City of Memphis and, thus, no “case.”  Only residents of Memphis would have a “case or controversy” with the City of Memphis.

Therefore, courts will only enter a judgment and issue an opinion explaining the reasons for the judgment only in regard to the particular case or controversy before them and the parties before them.

So, if a federal court has jurisdiction to hear a “case or controversy” between one or more citizens and the governor over the constitutionality of law X, part of which applies only to the governor and another part of which applies only to county clerks, then the court can enter a judgment only against the governor and can only enjoin the governor from enforcing the part of the law that applies to him or her.

Since, in this hypothetical, the federal court does not have before it a “case or controversy” involving the county clerk and the part of the law that applies only to the county clerk, the court cannot enter a judgment against the county clerk. The court cannot enjoin the county clerk from enforcing the part of the law applicable to him or her. Until there is such a case or controversy, the county clerk must presume the part of the law applicable to him or her is still valid. (See the extended answer to Question 1 above.)

If, however, the county clerk thinks the remaining law that applies to him or her is also unconstitutional, he or she can do one of two things: ask the legislature to amend the law to clear up any constitutional questions or bring a declaratory judgment action to have a court “declare” what to do.

Here’s the key point: The county clerk can’t just ignore the law or interpret it the way he or she wants to.

Clerks who take the law into their own hands can get sued, and, indeed, the clerks in Williamson and Bradley Counties did get sued for issuing licenses in violate of state law. One of those cases is currently pending before the Tennessee Court of Appeals.

THE FEDERAL COURT CASE INVOLVING TENNESSEE WAS TANCO V. HASLAM, NOT OBERGEFELL V. HODGES.

If you’re like most people, you have never heard of Tanco v. Haslam, but that is the name of the only lawsuit filed in federal court creating a “case or controversy” involving Tennessee’s marriage laws.

“Obergefell v. Hodges” was a case or controversy against the state of Ohio involving Ohio laws.

Because federal courts only enter judgments against the parties before them and only in regard to disputes over the specific laws before them, the judgment entered in the Obergefell case has no binding effect on Tennessee whatsoever for the simple reason Tennessee was not a party to the lawsuit in Ohio over the Ohio laws.

Remember: Courts don’t make laws; they only settle disputes between parties.

ALL RIGHT, THEN, WHO SUED WHOM OVER WHAT IN TANCO V. HASLAM?

Because of the foregoing, the only exercise of federal judicial power relative to Tennessee is found in the judgment entered in Tanco v. Haslam, and the federal court could only enter a judgment in regard to the particular law that was in controversy in that particular case.

The Plaintiffs: In the Tanco case, all the plaintiffs were same-sex couples who had lawfully married under the laws of some state other than Tennessee and subsequently moved here. None of the plaintiffs had ever been denied a marriage license by a county clerk.

The Defendants: The plaintiffs only sued Governor Haslam; Bill Gibbons, then Commissioner of the Department of Safety and Homeland Security; Larry Martin, the Commissioner of the Department of Finance and Administration; and Robert Cooper, the Attorney General & Reporter.

These were the appropriate officials to sue because they alone administer the laws that would affect people married in another state who move here.

But—and this is a huge point—no county clerk, the official in Tennessee who isues marriage licenses to those wanting to marry in Tennessee, was sued.

That means there was no “case or controversy” involving anyone in the state of Tennessee who actually issues marriage licenses and, therefore, the statutes authorizing the issuance of licenses were not at issue.

That means two things. The federal court hearing the Tanco case or controversy could not:

• enjoin the enforcement of the marriage license statutes or the provisions of the Tennessee Constitution that relate to and govern the licensure statutes,
• enjoin any county clerk in Tennessee from enforcing the marriage licensing statutes.

Nevertheless, the same-sex couples asked the Court to enjoin enforcement of the marriage licensing statutes and the provision in Tennessee’s Constitution that prohibits “any policy, law, or judicial interpretation purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman.”

The attorney general & reporter objected to that request, putting this statement in his opposing brief: “Plaintiffs sought declaratory relief only with respect to the Tennessee laws that ‘purpor[t] to deny recognition’ to out-of-state same-sex marriages. Plaintiffs did not seek a declaration that under the Fourteenth Amendment ‘a state may not exclude same-sex couples from civil marriage.’ Nor did Plaintiffs seek the wholesale invalidation of Tenn. Const. art XI, § 18.” (emphasis supplied)

The federal judge agreed with the state’s attorney general & reporter, not the plaintiffs! You can read it for yourself.

In fact, the federal judge had to agree with the attorney general & reporter because there was no “case or controversy” involving the marriage licensing statutes! ! It would have been unconstitutional for the Court to enjoin enforcement of the entire marriage provision in Tennessee’s Constitution because, under Article III of the U.S. Constitution, federal courts only have jurisdiction over the particular laws making up the particular “case or controversy.”

SO, WHAT DOES ALL THIS MEAN?

Until a judgment is entered in a case or controversy involving the marriage license statutes and the provision of the Tennessee Constitution quoted above, Tennessee’s county clerks and its citizens must presume the law is constitutional, point no. 1 above.

Perhaps most importantly, until a court in a case or controversy involving a county clerk enjoins the enforcement of the quoted provision of the Tennessee Constitution, the prohibition in the state constitution is still the supreme law in the state of Tennessee and must be obeyed by all as it still reflects the will of the people of Tennessee.

County clerks, who issue marriage licenses, and state officials can’t just pretend those laws are not enforceable because they think a court might enjoin them if there was a case or controversy involving them.

If county clerks and state officials do that, then we are back to being lawless again.

Sadly, that is exactly what is happening in our state.

Obergefell held that the “right to marry” was part of the 14th Amendment. So, the question is this: Who is authorized by the U.S. Constitution to carry out the 14th Amendment?

Since the law to be applied in answering this question is found in the U.S. Constitution itself, not in court opinions, the answer begins by realizing that the 14th Amendment, by its terms, is proscriptive relative to state action, not prescriptive. See U.S. Constitution, Amendment 14 (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”); see United States v. Morrison, 529 U.S. 598, 621, (2000) (stating that “[f]oremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action”)).

In other words, the 14th Amendment only prohibits (proscribes) states from violating the rights protected by the 14th Amendment, but it does not require (prescribe) the states to affirmatively do anything. The 14th Amendment prohibits certain state laws; it does not require state laws.
 
The U.S. Supreme Court either forgot or ignored the plain language of the 14th Amendment if it thought the 14th Amendment gave it power to require states to take any affirmative action, to enact any law. Perhaps the Court didn’t do this or didn’t think it was doing this, but certainly our officials involved with licensing marriages forgot about this and acted as if the Court had prescriptive powers, the power to make laws for Tennessee. Of course, our former governor and our present attorney general & reporter told them to do it, so they just followed orders, so to speak, and didn’t ask any questions.

In reality, though, this view about the nature of the 14th Amendment is also the United States Supreme Court’s own view of the 14th Amendment. The Court has recognized that the proscriptive nature of the 14th Amendment and the delegation of powers thereunder precludes even the possibility that any federal court could prescribe any affirmative action by the states.

In Ex Parte Virginia, 100 U.S. 339 (1879), the Court said of the 14th Amendment:

It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed [by the 14th Amendment]. . . . It is the power of Congress which has been enlarged.¹

The Court further said,

• “Congress is authorized to enforce the prohibitions [of the 14th Amendment] by appropriate legislation;”
• [w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view is brought within the domain of congressional power;” and
• “[w]ere it not for the fifth section of that amendment, there might be room for argument that the first section is only declaratory of the moral duty of the State, as was said in Commonwealth of Kentucky v. Dennison, 24 How. 66.”²

This last phrase—“only declaratory of the moral duty of the State”—is in full accord with Justice Scalia’s observation in his dissenting opinion in Obergefell regarding the “impotency” of the federal judiciary to give “efficacy” to its judgment and affirmatively commandeer the states into doing so through state licensing laws. Obergefell, 135 S.Ct. at 2631. (Scalia, J., dissenting).

The bottom line is that the Court may have said there is a right to marry in the 14th Amendment and even may have said state laws cannot prohibit that right, but, assuming the Court even has the power to “enumerate” by its opinions a “right” in the U.S. Constitution, that is where the power of the United States Supreme Court ends. It has no power to prescribe or create any means by which that right can be exercised. Such power was placed by the 14th Amendment in the hands of Congress, but the careful student of the U.S. Constitution will quickly recall that the regulating of marriage is not one of the powers delegated to Congress under Article I of the U.S. Constitution. Moreover, even Congress’ power under the 14th Amendment is limited to federal laws that prohibit (proscriptive) offending state laws; it has no power under the 14th Amendment to require (prescriptive)  the enactment of state laws.

The crux of the matter is this: The U.S. Supreme Court launched a right to marry into its constitutional jurisprudence without making sure anyone had the authority or even the obligation under the U.S. Constitution to issue a license for it.

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[1] Id. at 345-346, 347.

[2] Id. at 347.

THE COURT COULDN’T ORDER A Non-party OFFICIAL TO DO what state law has not authorized.

When we remember that the judicial power is simply the power to enter a judgment resolving a particular dispute between different parties, we are forced to consider who was sued and what relief was requested in the cases decided by the judgments explained by holdings in the Obergefell opinion.

There were three licensure cases before the U.S. Supreme Court, one each from Kentucky, Michigan, and Ohio. The case against Tennessee, Tanco v. Haslam, did not deal with Tennessee’s licensure law.

Because the U.S. Supreme Court did not enter a judgment with respect to Tennessee’s licensure laws or even with respect to a county clerk, the Supreme Court could not have purported to order Tennessee’s county clerks to do anything. County clerks and the licensure laws were not at issue.

THE U.S. SUPREME COURT CANNOT MAKE A LAW FOR A STATE TO REPLACE THE ONE IT ENJOINED.

But, beyond that, the only way the U.S. Supreme Court could have ordered anyone in Kentucky, Michigan, and Ohio to issue a license is if the Court has the power to make laws for those states. And courts don’t make laws.

Moreover, in the cases involving Kentucky, Michigan, and Ohio, the issue was whether the state’s licensure law violated the 14th Amendment by restricting the issuance of licenses to male-female applicants.

The Supreme Court opined that the laws did violate the 14th Amendment, because there was, for the first time ever, a right to marry in the 14th Amendment.

But holding that a state law can’t be enforced and that there is a 14th Amendment right to the type of marital relationship the Court said was “in” the 14th Amendment does not create any state law authorizing anyone in the state to issue a license for the type of relationship the U.S. Supreme Court said was a 14th Amendment type of marriage.

WE DON’T EVEN KNOW WHAT CONSTITUTES A 14TH AMENDMENT MARRIAGE.

In fact, the U.S. Supreme Court did not affirmatively define the required elements of a 14th Amendment marriage other than to say, whatever a 14th Amendment “marriage” is, the sex of the parties is irrelevant. For example, since marriage is now a federal right, we don’t know if 14th Amendment marriages are limited to two parties. The Supreme Court will soon have to decide that question. In addition, the Court did not address the extent to which incest laws matter since same-sex couples cannot reproduce as between themselves. These are no longer issues of state law, but federal issues arising out of the form of marriage existing under the 14th Amendment. The federal judiciary will have to answer these questions before states will know what they can and cannot permit as a part of state statutory scheme for licensing 14th Amendment marriages, assuming a state even chooses to license federal marriages.

So, until states know what a 14th Amendment marriage is—what its required elements are and what boundaries and limitations are associated with it—they can’t license one even if they wanted to.

THE U.S. SUPREME COURT CAN’T DECIDE FOR ITSELF WHO IN A STATE SHOULD ISSUE A LICENSE FOR A 14TH AMENDMENT MARRIAGE.

Moreover, a federal court cannot tell a state who in the state should carry out the state’s duties, assuming the state even has a duty to issue licenses to anyone for a 14th Amendment federal form of marriage. The state’s constitution controls which branch of government or which officials in state government can assign various duties and to whom.

The principle of dual sovereigns embedded in our U.S. Constitution and recognized by the 10th Amendment (i.e., the existence of a federal government and state government) prohibits any branch of the federal government from telling a state who must do what. Part of the sovereign powers of the state is to decide who it wants to have do various things, like issue various licenses.

The holding in the Obergefell opinion did not take away the legislature’s authority to prescribe duties to county clerks.

The implications arising from the principle of dual sovereigns is a particular problem when it comes to Tennessee’s county clerks. The Tennessee Constitution is very clear as to who prescribes duties to them.

Article VII, section 1 provides: “The qualified voters of each county shall elect for terms of four years a legislative body, a county executive, a sheriff, a trustee, a register, a county clerk and an assessor of property. Their qualifications and duties shall be prescribed by the General Assembly.”

No one could honestly say that the holdings in the Obergefell opinion necessarily held that this provision of the Tennessee Constitution was unconstitutional when it came to the duties of county clerks, and, as a consequence, no one can say that the Obergefell opinion stands for the proposition that federal courts can now assign duties (make a law) to a county clerk.

The Tennessee Legislature has never prescribed to a county clerk a duty to issue a license for a 14th Amendment form of marriage, only a form of marriage expressly defined explicitly in terms of the differences between the two biological sexes. (See Question 6 for an explanation for why the county clerk, by issuing licenses for a 14th Amendment marriage, is not just issuing marriage licenses to more couples.)

To think that the U.S. Supreme Court required Tennessee’s county clerks to issue licenses is to think that federal courts:

• make laws,
• make laws for states to replace existing state laws if they are not enforceable,
• and make laws for particular state officials, even though the state’s constitution says the legislature is to decide what duties that particular official is to have.

Any of Tennessee’s elected officials who think that the U.S. Supreme Court can order a county clerk to do what state law has never authorized its county clerks to do effectively considers the U.S. Supreme Court a legislative body with the power to create laws for our state. This is the end of constitutional government in the United States, at least so far as the legislative branch is concerned. Tennesseans are no longer represented by a majority vote of their legislature, but by a majority vote of the nine lawyers on the U.S. Supreme Court.

Because courts only issue judgments that resolve particular disputes between particular parties and, in this situation, disputes over particular laws, the question for every state other than the ones against which judgments were actually entered is whether that state’s particular law conflicts with the reasons the Court gave for its judgment in regard to those other states’ laws. The laws of the one state may deal with the same subject matter and may seem similar, but they may be different in critical ways.

The Obergefell opinion was very clear that the Court was dealing with marriage as a matter of “enacted law and policy.” And the majority expressly said that it did not intend for its opinion to “disparage” other understandings of marriage.

So, since no state or federal court has ever enjoined the enforcement of Tennessee’s marriage licensure statutes and the provisions in Tennessee’s Constitution that govern those statutes, Tennessee elected officials should have asked whether Tennessee’s understanding of marriage as reflected in its Constitution and licensing statutes is sufficiently different from the understanding of marriage reflected in the laws of Kentucky, Michigan, and Ohio that Obergefell’s reasoning does not apply to Tennessee’s laws.

The answer is that Tennessee’s laws are significantly different!

UNDERSTANDING HOW TENNESSEE’S MARRIAGE LAW DIFFERS FROM KENTUCKY, MICHIGAN, AND OHIO

Tennessee’s constitutional provision on marriage, Article XI, section 18, was a reservation by the people of Tennessee of rights related to an understanding of marriage as a pre-political, pre-governmental relationship between private parties and not an understanding of marriage as something that arises out of or is created by government “enacted law and policy” and for which permission to marry must be granted.

Tennessee’s constitutional provision describes what we’d call marriage at common law. The description of marriage in Tennessee’s Constitution is unique when compared to the language used in the Kentucky, Michigan, and Ohio constitutions to describe marriage.

To appreciate the distinction between marriage at common law and marriage by “enacted law and policy,” we need to understand that common law is that form of law that exists apart from and prior to any legislatively enacted law and policy. Common law recognizes practices and customs that have existed for so long that “the memory of man runneth not to the contrary.” It is “[t]his . . . that gives it its weight and authority” as law, not its promulgation or enactment by a legislative body.¹

We can now see how the description of marriage in Tennessee’s Constitution compares to the description of marriage at common law:

Tennessee Constitution:
“The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state.”

Common Law:
“Our law considers marriage in no other light than as a civil contract” (William Blackstone, Commentaries on the Laws of England).

Moreover, unlike marriage as a product of “enacted law and policy,” the reason marriage at common law was treated as a special kind of contract is that it was considered a private relation, not a government-created relation: “The second private relation of persons [existing at common law] is that of marriage, which includes the reciprocal rights and duties of husband and wife” (Blackstone, Commentaries on the Laws of England).

CONCLUSION

Obergefell only dealt with marriage as a product of enacted law and policy, not marriage as a relationship existing apart from any legislative enactment.
Therefore, Tennessee’s licensure statutes must be construed as securing for the people (as allowed by the Ninth Amendment) the understanding of marriage reflected in the state’s constitution and, consequently, only securing their rights in relation to that understanding of marriage, not creating a kind of relationship it chose to call marriage.

The holdings in Obergefell did not address whether a marriage at common law between a man and woman in a common-law state was unconstitutional and whether it is unconstitutional for a state to allow those who enter into this non-government created and licensed relationship to make that relationship a matter of public record.

That is why Tennessee should not assume that the holdings in Obergefell necessarily apply to the laws in Tennessee. The legislation proposed as part of God-Given Marriage, when enacted, should be presumed constitutional until it is challenged in court and a court holds that it is contrary to the holdings in Obergefell.

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[1] William Blackstone, Commentaries on the Laws of England: A Facsimilie of the First Edition of 1765-1769, Volume 1 (Chicago and London: The University of Chicago Press, 1979).

When a judgment is entered against a state enjoining enforcement of its law, it usually does one of two things:  amend the existing law in a manner that would hopefully make it constitutional or just do without the law. However, until the existing law is amended, there simply isn’t any enforceable law governing the conduct or issue that was the subject of the law that was enjoined.

If, however, the law enjoined is that of another state, the other states have a few options. That’s the situation in which Tennessee finds itself with regard to its marriage licensing laws.

TENNESSEE’S OPTIONS SINCE ITS MARRIAGE LICENSING STATUTES WERE NEVER ENJOINED

So, in the present situation, the judgment resulting from the Obergefell opinion only enjoined enforcement of the marriage licensing laws in Kentucky, Michigan, and Ohio. The judgment did so because the Court was of the opinion that their licensing laws were unconstitutional.

But Tennessee’s marriage licensing statutes were not the subject of the Obergefell judgment. So, as with other states, officials in Tennessee who either administer the licensure statutes or who have to decide whether to treat as valid a marriage licensed in Tennessee can do one of four things:

• bring a declaratory judgment action to have a court determine whether its license laws are still enforceable,
• change its licensure laws to redefine the qualifications for a license by eliminating the male-female requirement and thus avoid conflict with the holdings in Obergefell,
• continue enforcing its existing statutes and constitutional provisions, knowing they might get sued, but believing the constitutionality of those laws can be defended. The existing laws would be defended on the grounds that: (1) the reasons given by the Obergefell majority for the judgment against the laws in those other states was wrong and they want an opportunity to convince the court that it was wrong, or(2) they are different enough from the other state’s laws that the reasons that made the statutes in those other states unconstitutional don’t apply to Tennessee’s law.
• enact the Marital Contract at Common Law Recording Act, discussed under the Legal tab.

EVALUATING THE FIRST OPTION—A DECLARATORY JUDGMENT ACTION

The first option is the one the state’s attorney general & reporter said was proper if an official charged with administering the statute was in doubt about its constitutionality and the legislature had not amended the statute in question. Opinion 84-157.

In that opinion, the attorney general & reporter said “ministerial public officials,” which county clerks are when it comes to the issuance of marriage licenses, “are required to consider a state statute as constitutional until declared otherwise by a court of competent jurisdiction.” It is because of this “requirement” and the fact that no court has taken jurisdiction over Tennessee’s license statutes to determine their constitutionality that Tennessee’s county clerks should have filed a declaratory judgment action to have a court declare what duties, if any, they still had after the judgment was entered in Tanco v. Haslam.

No one knows why the current attorney general & reporter ignored the opinion of his own office when, after Obergefell, he instructed Tennessee’s county clerks to issue marriage licenses to same-sex couples and to disregard the continuing validity of Tennessee’s constitutional provisions governing the kind of marriages the legislature had authorized them to license.

The declaratory judgment option could still be exercised, but someone who is charged with administering or operating under those laws would have to bring the action.

The Constitutional Government Defense Fund¹ brought two such lawsuits on behalf of those authorized to solemnize a marriage for legal purposes in Tennessee, but the two county clerks that were sued insisted on their right to continue disobeying the Tennessee Constitution.

Sadly, the courts dismissed both lawsuits on the ground that the minister plaintiffs did not have standing to find out if the licenses issued to them and that they must sign were valid. The courts also ruled that the citizens who were part of those suits had no standing to ask if the actions of the county clerk were unconstitutional and, thus, void and unenforceable, per the Tennessee Constitution. The case filed in Williamson County is now on appeal.

Another different action will soon be filed and two more may be filed if state and local officials continue disregarding the provisions of the Tennessee Constitution that govern the state’s licensing statutes.

Officials in Tennessee who could bring a declaratory judgment action that would raise the question of the continuing validity of Tennessee constitutional provisions governing marriage licensing and the recognition of same-sex “marriages” include, among others, the governor, state treasurer, and any of the state’s 95 county clerks.

EVALUATING THE SECOND OPTION—AMEND OR REPLACE THE EXISTING STATUTE

The second option is a possibility except for the fact that no court has ever enjoined the provisions of Tennessee’s Constitution that prohibit “any law purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman.”

In other words, the legislature is still prohibited by Tennessee’s Constitution from amending or replacing the current licensing statute to allow for the issuance of marriage licenses to same-sex couples.

One might say, “Well, as long as no one cares, the legislature should go ahead and amend the licensing statutes to authorize licenses to same-sex couples.”

Apart from the fact that doing this is rogue lawlessness and legislators would be knowingly violating their oaths of office, all the marriage licenses issued to same-sex couples and the marriages based on them would be under a great cloud of legal uncertainty when those couples want to buy real estate, secure a loan, or file a state or federal tax return. Why? Because the provision of the Tennessee Constitution that still remains in place says those laws and, therefore, the licenses issued pursuant to them and the marriages legalized in accordance with them “shall be void and unenforceable.” In fact, if the statute itself is void and unenforceable, and not just the licenses issued to same-sex couples, licenses to male and female couples may be void and unenforceable, too. Until a court decides whether the new licensing statute violates the Tennessee Constitution, no married couple will know for sure if the license issued to them was valid.

EVALUATING THE THIRD OPTION—DEFENDING THE EXISTING STATUTE

The third option is for Tennessee’s Legislature to insist that the state’s officers and county clerks follow the existing licensing statutes and enact legislation that funds the cost of defending Tennessee’s existing laws governing licensure. The argument would be that Tennessee’s constitutional provision regarding marriage rests on a different legal and conceptual foundation than the similar provisions in Kentucky, Michigan, and Ohio. And, as a consequence, Tennessee’s licensing statutes are not doing what the statutes in those other states were doing. For this argument, see the answer to Question 6.

EVALUATING THE FOURTH OPTION—'THREADING THE NEEDLE'

Lastly, the legislature can “thread the needle” between what the Tennessee Constitution prohibits them from doing and the holdings in Obergefell. (Keep in mind, the 14th Amendment form of marriage may be a federal responsibility, not a state one.) The details of that legislative option will be presented to the legislature at a later time, but the concept has been laid out under the Legal navigation tab of this website.
 

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[1] The Constitutional Government Defense Fund (CGDF) is an initiative associated with The Family Action Council of Tennessee (FACT). The purpose of CGDF is to evaluate the prosecution of lawsuits where government actions violate constitutional principles that, if unchecked, will prohibit the state of Tennessee from protecting the institution of marriage. The first action taken was the filing of lawsuits related to the constitutional effect of the U.S. Supreme Court’s decision June 2015 in Obergefell v. Hodges.