The General Assembly is speaking up to support the Williamson County lawsuit filed by former state Senator David Flower of the Family Action Counsel of Tennessee through the resolution I filed called HJR529.
David’s lawsuit will hopefully end same sex marriage in Tennessee. The legislature does not have standing to sue to our resolution in support of this lawsuit is also a great effort to defend separation of powers and the doctrine of severability.
When the SCOTUS stated that Tennessee's marriage law was invalid they next also declared that same sex couples can now marry. But this action in reality violates separation of powers; the SCOTUS cannot make law by decree - that power is reserved for legislatures. Under the doctrine of severability, if the court is going to strike part of a law it cannot change the meaning of the law into something that the legislature had never actually voted to enact.
However, that is exactly what the Court did in this case, and exactly why we, as lawmakers, need to support this lawsuit. Imagine the implications for the future if we let this action go unchallenged and unsupported; we as legislators would be giving into the court and allowing them to make law. The language of the amendment that re-writes the resolution is below.
HJR529 - Resolution Commending Certain Tennessee Citizens for their defense of the Constitution
Whereas, on June 26, 2015, the United States Supreme Court, by a five to four decision in Obergefell v. Hodges, 576 U.S. ___ (No. 14-556, 2015 WL 2473451 (June 26, 2015)), said “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”,
Whereas, the express statutory requirement in TENN. CODE ANN. § 36-3-104(a) that the applicants for a marriage license be a “male and female” and that there be a valid license “before” a marriage can be solemnized would appear to “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples”,
Whereas, as to the constitutional appropriateness of simply deleting the words “male and female” from TENN. CODE ANN. 36-3-104(a), the Tennessee Supreme Court, in State of Tennessee v. Crank, No. E2012-01189-SC-R11-CD, filed February 13, 2015, said even the “legislative endorsement of elision ‘does not automatically make it applicable to every situation; however, when a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion omitted, then elision of the unconstitutional portion is appropriate.’ (internal citations omitted),”
Whereas, given the history of the marriage laws of Tennessee, this General Assembly, some members of which voted for TENN CODE ANN. § 36-3-104(a), believe that TENN. CODE ANN. 36-3-104(a) would never have been enacted had the words “male and female” been deleted so as to allow two people of the same sex to marry,
Whereas, the majority in Obergefell ordered the state to issue marriage licenses notwithstanding its holding that state marriage license laws that “exclude same-sex couples from civil marriage” are “invalid,
Whereas, this particular aspect of its ruling raises the broader and even more important constitutional issue of which branch of government in our constitutional republic can enact or amend state laws,
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, allows 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.