A seemingly benign bill sponsored by progressive Democrats from Davidson County, Sen. Jeff Yarbro (D-Nashville) and Rep. Darren Jernigan, if passed, will support Tennessee Attorney General’s directive to county clerks that they must issue marriage licenses to same-sex couples in compliance with Supreme Court’s ruling in the Obergefell case.
Attorney General Slattery issued that directive the same day the Supreme Court issued its ruling.
The Yarbro/Jernigan bill, SB1790/HB1785, would raise the state’s age of marriage to 18 and eliminate all other provisions in state law that allow parents to consent to minors marrying.
David Fowler, President of the Family Action Council of TN (FACTN) says that amending Tennessee’s marriage license laws in any way, arguably supports the Attorney General’s position opposing the suit filed by FACTN’s Constitutional Government Defense Fund (CGDF) challenging the Obergefell decision’s effect on the state’s marriage license laws. It is the only case of its type pending in any U.S. court.
In that case the Attorney General argued that “As the General Assembly…has declined to repeal [the male-female language requirement] post-Obergefell, it is evident that the General Assembly does not intend the entire marriage-licensing scheme should be invalidated in the wake of Obergefell.”
Serving as counsel of record for the CDGF, Fowler filed two lawsuits related to the ruling in Obergefell. The suit filed in Williamson County was dismissed, but the suit filed in Bradley County is moving forward.
No state court or federal court have determined the effect of the Obergefell decision on Tennessee’s marriage licensing laws. In fact, Fowler points out, “Our statute was not one of the laws challenged in the lawsuit against Tennessee,” nor were the state’s laws put in issue before the U.S. Supreme Court. So according to Fowler, there’s been no determination that Tennessee’s law is unconstitutional:
On the first question, the TN Supreme Court has held that ministerial officers, which is what county clerks are, have no constitutional authority to decide the constitutionality of a statute they administer as it is the usurpation of the judicial powers. In addition, the Attorney General [in 1984] has opined (AG Opinion 84-157), that ministerial officers ‘must obey’ existing law until a court actually declares that a statute they administer is unconstitutional.
And while a court may rule that a state law is unconstitutional or otherwise invalid, a court cannot impose a new law on a state, in this case, a new marriage law on Tennessee. That action can only be taken by the state legislature.
Fowler contends that the Attorney General in directing county clerks to issue marriage licenses to same-sex couples, is simply acting as if “they can ignore” the plain language of Tennessee’s marriage license law which he explains “as enacted and written, only authorizes the issuance of a license to ‘male and female contracting parties.'” Instead, the AG and the county clerks are acting as if the explicit language of the state law was somehow “changed.”
To get around the plain language of the state’s law, the Attorney General’s office has taken the position that parts of the Tennessee Code other than the marriage laws use gender definitions that are all inclusive, meaning that the definition of “masculine” also includes “feminine” and “neuter.”
According to Fowler, in 1995, the Tennessee legislature added the specific “man and woman” language to the marriage license law. The following year, state voters adopted a constitutional amendment with the same language.
In 2006, Tennesseans overwhelmingly approved a “Defense of Marriage Act” amendment to the state’s constitution meaning that only a marriage between a man and a woman would be legally recognized.
Sen. Yarbro’s bill SB1790 is set to be voted on by the full Senate on Monday, March 12th but was deferred to summer study in the House Civil Justice Subcommittee. Since this legislative session will end the two year term, the bills would have to be refiled in the next elected General Assembly.