(NASHVILLE) — This week, State Representative Susan Lynn (R–Mt. Juliet) successfully shepherded a resolution through the State House to express Tennessee's support of two lawsuits that present a challenge to the 2015 Obergefell decision on same sex marriage.
House Joint Resolution 529 supports the legal arguments being made in Williamson and Bradley Counties that seek to defend federalism, separation of powers, and the doctrine of severability which the plaintiffs feel were disregarded in the Obergefell v. Hodges decision.
The lawsuits claim that the Obergefell decision invalidated all of Tennessee's marriage law, and further that the court's decree stating that states must now marry same sex couples is a violation of separation of powers and the doctrine of severability.
In the ruling, the Supreme Court declared that marriage laws across the nation are invalid to the extent that they exclude same sex couples, and then further decreed that states must immediately allow same-sex couples to marry, despite the fact that only four states were part of the decision.
The plaintiffs point out that Tennessee's marriage law was held invalid by the court because it does exclude same sex couples — therefore there is no marriage law in Tennessee. With no law, they are unable to lawfully marry anyone.
They further contend that when the court decreed that states must immediately marry same sex couples the court unconstitutionally breached the separation of powers. The plaintiffs protest that the court has no power to make law or amend current law by any ruling especially after the same court declared the law invalid. Making law is the role of the legislative branch of government.
Others claim that the court did not make law, but merely severed the part of Tennessee law that makes marriage applicable to one male and one female. However, the plaintiffs contend that even that argument is lawfully impossible because it violates the doctrine of severability by making Tennessee's marriage law into something neither the people nor the legislature ever would have passed.
It is very clear that in 1996 the state legislature voted to ensure that marriage was only applicable to male and female applicants. This was reaffirmed by the legislature in 2004 and 2005 when the legislature passed resolutions to amend the Tennessee Constitution with the same language. The very next year the voters too affirmed this policy by approving the Constitutional Amendment by 81.3% of the vote. Therefore, according to the plaintiffs, the court is unable to lawfully use the doctrine of severability to make the existing marriage law apply to same sex couples because it is clear that neither the people nor the legislature would have intended for the law to mean same sex couples can marry; meaning that the only options available to the court is to do nothing or to strike the entire law.
"The resolution passed today by a vote of 73 to 18. I wrote this Resolution because the legislature is without standing to sue the court over their decree that purported to make new law in Tennessee. Our vote on this Resolution affirms our state sovereignty, and our guaranteed Constitutional right of separation of powers and the doctrine of severability,” stated Lynn.