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VOL. 130 | NO. 201 | Thursday, October 15, 2015


Sam Stockard

Posturing Against Supreme Court Is a Waste of Money

By Sam Stockard

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Legislation rejecting the U.S. Supreme Court’s same-sex marriage ruling faces major constitutional questions and, if passed, could put a financial burden on Tennessee taxpayers.

When the high court declared gay and lesbian couples have the right to be married across the United States, overturning state laws to the contrary, Tennessee’s Republican legislators started brainstorming for methods to work around the decision or to defy it. The Republican Caucus still hasn’t announced the outcome.



Still, Republican Reps. Bryan Terry and Andy Holt sponsored a bill to protect ministers who refuse to perform ceremonies for same-sex couples, even though most experts and ministers said the measure is unnecessary. Preachers already have that right.

And following a “Stand in the Gap” rally for religious freedom on the Legislative Plaza in September, Sen. Mae Beavers, R-Mt. Juliet, and Rep. Mark Pody, R-Lebanon, filed the “Tennessee Natural Marriage Defense Act.”

In calling for Tennessee to defend state law and the constitutional amendment adopted in 2006 defining marriage as an act between one man and one woman, Beavers and Pody say their bill rejects the Obergefell v. Hodges decision and requests the attorney general to defend state and local officials from legal action if they take actions contrary to the ruling.

In addition, House Bill 1412/Senate Bill 1437 would protect county clerks and ministers from prosecution or civil action if they hold religious objections to conducting marriages for same-sex couples.

“This decision defies constitutional authority and is one of the most glaring examples of judicial activism in U.S. Supreme Court history,” Pody says in a statement. “It not only tramples on states’ rights but has paved the way for an all-out assault on the religious freedoms of Christians who disagree with it.

“This bill calls for Tennessee to stand against such unconstitutional action in hopes that other states will stand with us against an out-of-control court legislating from the bench.”


Says Beavers: “Natural marriage between one man and one woman as recognized by the people of this state remains the law, regardless of any court decision to the contrary.”

Beavers calls the high court’s ruling a blatant “overstep” of its authority and says it’s time for states to stand against judicial tyranny that Thomas Jefferson warned the country about during the nation’s founding. She further notes the legislation would deem any court decision striking down the definition of natural marriage as void in Tennessee.

She quotes Jefferson in the statement: “Whenever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

The legislation says no state or local agency “shall give force or effect to any court order that has the effect of violating Tennessee’s laws affecting natural marriage.”

In addition, its states: “No state or local agency or official shall levy upon the property or arrest the person of any government official or individual who does not comply with any unlawful court order regarding natural marriage within Tennessee.”

Kim Davis, a county clerk in Kentucky, was arrested – much to the chagrin of conservatives nationwide – for refusing to comply with the court’s decision.

During the legal scrum immediately after the Supreme Court’s decision, numerous people across the state, including state legislators and ministers who spoke during the “Stand in the Gap” rally, say the judges’ decision is simply a ruling and not the “law of the land.”

Not so fast

Gov. Bill Haslam, who joined with AG Herb Slatery in ordering county clerks to issue marriage licenses to same-sex couples after the court’s ruling, says the Beaver-Pody bill has “serious constitutional questions,” as he understands it.

“I’m not certain how we can ignore something that the federal government has said, ‘This is the law of the land,’” the Republican governor notes.

“I think that’s how it works,” he says. “That doesn’t mean I like it. That doesn’t mean I like it at all. I don’t agree with the decision. But I don’t know how we as a state say we’re not going to abide by what the Supreme Court passed.”

Vanderbilt University law professor Brian Fitzpatrick concurs.

“It seems like they want the Tennessee Constitution to be followed instead of the U.S. Constitution. That’s not how it works,” says Fitzpatrick, who followed the court’s ruling closely.

The U.S. Constitution’s Supremacy Clause says federal law and the U.S. Constitution are supreme law over state law and state constitutions. Consequently, state law must yield to federal law.

Apparently, people such as Beavers, Pody and the ministers who took to the podium during the September rally don’t believe the court’s opinion is the same as the Constitution, he points out.

And while various people in U.S. history have “articulated” the idea the Supreme Court doesn’t have final say on the Constitution’s meaning, he says, such as an outlook has “always been a minority view. These days it’s a real minority view.”

Early in the nation’s founding, uncertainty existed about the U.S. Supreme Court’s authority on the Constitution’s meaning, he points out. But with regard to conflicts between state and federal law, it was clear from the beginning the high court would have ultimate authority, Fitzpatrick says.

“The norm now is the U.S. Supreme gets the final word on what the U.S. Constitution means. It’s binding on everyone, and it’s very unusual to hear people articulating a contrary view anymore,” he says.

“They still pop up every once in a while, but this is not the mainstream view of who gets the final word. So these are real outliers.”

Make no mistake, the Supreme Court was interpreting the Constitution when it ruled in Obergefell v. Hodges, he notes.

“They said the Constitution requires gays and lesbians to be allowed to be married. And they get the final say on what the U.S. Constitution means. That’s just how the system has unfolded over the last 200 years,” he says.

One way out

On the other hand, Fitzpatrick says the General Assembly might be able to enact legislation protecting county clerks from being sued if they refuse for religious reasons to issue marriage licenses to same-sex couples – but only if someone else in the office issues the licenses in their place.

That appears to be part of the Beavers-Pody bill.

But legislation giving the state Constitution an upper hand on the U.S. Constitution would accomplish only one thing, Fitzpatrick contends.

First, it won’t stop any gay couples from getting married because federal courts will force state officials to grant the marriage licenses, he says.

“All it’s gonna do is one thing: It’s gonna run up a huge bill that the taxpayers of Tennessee are gonna have to pay for all the attorneys’ fees for all the people who are gonna have to sue the state to get their marriage licenses,” Fitzpatrick says.

Couples would be able to file suit under a federal statute stating if unconstitutional action is taken, they can sue and get their attorneys’ fees back. Federal courts will rule in the couples’ favor, and the state would have to pay their court costs.

“So this would really be fiscally irresponsible,” Fitzpatrick says. “You’re trying to make a symbolic point here, but it’s going to cost the state a lot of money to do it.”

State lawmakers point toward the outcome of the 2006 vote in which voters overwhelming stated marriage is defined as an act between one man and one woman as their motive for taking legislative action.

Sure, 81 percent of Tennessee votes backed it, most people believing that should be the case. But many people also recognize the world doesn’t always work out the way they think it should.

And, in this case, they probably don’t want to spend thousands of dollars trying to rewrite the U.S. Constitution to keep a gay couple from tying the knot.

Meanwhile, billions of dollars in road projects languish and college students pile up debt as legislators fight for states’ rights, a question settled long ago costing hundreds of thousands of lives.

Sam Stockard can be reached at sstockard44@gmail.com.

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