State Representative Susan Lynn has filed an House Joint Resolution in support of a lawsuit filed in Williamson County that asks the court for a declaratory judgment on whether the U.S. Supreme Court invalidated all of Tennessee’s marriage licensure law with the Obergefell decision in June of last year.
Lynn stated that “We must remind ourselves that in United States v. Windsor, 570 U.S.___ (2013), the United States Supreme Court said that the rights of those whom they purport to marry is determined by state law including the laws of the state of Tennessee – this sudden reversal and attempt to create law is without precedent.” The Wilson County legislator further stated that “I have dozens of sponsors, and the message of my resolution is clear, we as a state have been violated, and we expect the doctrine of separation of powers and the principles of federalism reflected in our Constitution to be upheld.”
In the lawsuit, the plaintiffs argue to the court that they believe that the SCOTUS invalidated all of Tennessee’s marriage licensure law, and that if the court has invalidated the law the plaintiffs cannot lawfully distribute marriage licenses, solemnize marriages, or be a witness on a marriage license because to do so would be violation of law.
The lawsuit quotes the court in Obergefell v. Hodges, 576 U.S. “state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” And that the SCOTUS further stated that “The Court now holds that same-sex couples may exercise the fundamental right to marry.”
However, the plaintiffs contend that Tennessee’s marriage licensure law cannot be both invalid and valid at the same time. The court cannot opine that Tennessee’s marriage licensure law is invalid because it mandates that marriage is between a man and a woman – therefore striking that provision – and then go on to decree that what this now means is that Tennessee must from hence forth marry same sex couples. Doing so violates the doctrine of severability (elision in state court).
To violate severability or elision means that a court cannot strike one part of the law if it would give a new meaning to the law that the legislature never intended for the law to have. In such a case, the court must strike the entire law leaving the legislature free to either reenact the law without the unconstitutional provision or choose not to act at all.
The doctrine of severability is reaffirmed at the federal level all the time and elision was just reaffirmed last year by the Tennessee Supreme Court, in State of Tennessee v. Crank, No. E2012-01189-SC-R11-CD, filed February 13, 2015. It is not an unusual thing for a state court to be called upon to decide how a decision of the U.S. Supreme Court should be applied to a state law.
Rep. Lynn in expressing her agreement with the Plaintiffs argument said “The Tennessee General Assembly and the voters have voted to reaffirm traditional marriage again and again.” Lynn went on to say that “The Plaintiffs are correct, the court cannot strike the words man and woman from our law leaving the rest of the law in place to apply to everyone.”
The attorney for the Plaintiffs, David Fowler from the Constitutional Government Defense Fund, stated in a press release on Thursday, “At the heart of the declaratory judgment lawsuit filed today is the issue of who rules the people of Tennessee and, ultimately, all the people of the United States.” “…let me be clear about what [this lawsuit] does not assert. This lawsuit does not deny that the Supreme Court has the power of judicial review. It does not deny the power of a federal court to judge the constitutionality of a particular law. It does not deny that the Supreme Court ruled that our state marriage license law is invalid. And it is that point which leads to what this lawsuit does assert, namely, how does anyone, regardless of the sexes of the parties, get a valid marriage license pursuant to an invalid law?”
“My resolution sends a message that we expect the doctrine of separation of powers and the principles of federalism reflected in our Constitution to be upheld by all courts. The Supreme Court cannot declare by judicial fiat a new statutory scheme in place of the old. The Court must leave it to the legislative branch to decide what should take the place of the scheme being stricken.” stated Rep. Lynn. “The court went far beyond judicial review; the judicial branch is denied the power to legislate to under the state and U.S. Constitutions under the doctrine of the separation of powers.”
Susan Lynn is Chairman of the House Consumer & Human Resources Subcommittee. She lives in Old Hickory and represents House District 57, which encompasses western and northern Wilson County. She can be reached by email at Rep.Susan.Lynn@capitol.tn.gov