Tennessee lawsuit would invalidate every marriage since June out of spite

As far as this group of conservatives is concerned, prohibiting same-sex marriage is more important than allowing opposite-sex marriage. So much so that it’s necessary to invalidate every marriage performed since June, and put the government’s entire role in issuing marriage licenses on hold, until the Supreme Court overturns Obergefell v. Hodges.

From ThinkProgress‘s Zack Ford:

Gay marriage via Shutterstock

Gay marriage via Shutterstock

Just one day after a Tennessee House committee rejected a bill to nullify the Supreme Court’s marriage equality decision, the head of the state’s top conservative organization filed a lawsuit hoping to, at the very least, stall same-sex marriage. And he has the support of several state lawmakers.

David Fowler, head of the Family Action Council of Tennessee (FACT), filed the state suit in Williamson County, asking County Clerk Elaine Anderson to cease issuing marriage licenses until the suit is resolved. His contention relies on a mix of odd technicalities relating to the impact of the Obergefell decision on Tennessee law, particularly the idea that the state’s entire marriage statute was invalidated. He argues that because lawmakers would never have passed a marriage law inclusive of same-sex couples, there is no longer any law stipulating marriage for any couple, and thus all marriage licenses issued in the state since last June are void. This, he fears, exposes the pastors who join him as plaintiffs to liability, because a separate Tennessee statute dictates that it is a Class C misdemeanor to solemnize a wedding between two people not legally eligible to marry, punishable by a $500 fine.

As Ford notes, Fowler doesn’t go to very much effort to hide the fact that his lawsuit is part of a broader effort to get Obergefell overturned. He even laid out his strategy in a flowchart on FACT’s website. Not doing much to help himself in the court of public opinion, Fowler has also claimed that this same strategy could have been, and perhaps still could be, used to pick apart Brown v. Board of Education. Rather than integrate the schools, Fowler argued, states could have simply stopped offering public education altogether.

Setting aside for the moment that Virginia tried to do exactly that following Brown, and both state and federal courts ruled that their massive resistance was unconstitutional, there’s an irony to Fowler comparing his opposition to LGBT equality to previous conservatives’ opposition to racial equality. That’s because, on issue after issue, American public policy is marked by privileged classes of people choosing to reject universal benefits entirely than share them with their marginalized peers. Marriage was recently removed from that list of universal benefits, but that list is still quite long and, unsurprisingly, racially coded.

Racism remains one of the primary predictors of opposition to social welfare programs in the United States. And it’s no accident that the states with some of the most progressive policies — North Dakota has a public bank; Utah provides free housing to its homeless population; Alaska’s permanent fund dividend is, for all intents and purposes, a universal basic income — also happen to be some of the whitest:

In Tennessee, some straight people would rather forego marriages entirely if it means that gay people can have them, too. In this case it looks like they’re about to get laughed out of the courtroom, as well they should. But the sentiment, however ridiculous and spiteful, remains a core roadblock to all kinds of progress.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Butch1

    He needs to lose his license to practice law, period! (ever again-with prejudice) Any person that has this much pent up hate in them where they would rather see everyone lose their marriage license just to go after gays is one mentally ill person and perhaps the law should be turned back on him instead.

  • Ol’ Hippy

    It’s time the religious privilege gets called out for what it is; a status granted by zealous bigots to keep antiquated practices in place. It’s time for these idiots to GET OVER IT we all are equal and deserve equal rights. A married couple deserves the rights granted by marriage(i.e.inheritance etc.), that ANY couple can live under. This indeed will guarantee that a loving union gets the rights they deserve. It’s time for equality to be the law of the land.

  • Pretty dumb. These same people use the argument that gay marriage in some way does a disservice to their straight marriage or harms it in some mysterious way no one can identify when asked so now that they’ve seen that it doesn’t they set about to deliberately harm straight marriage themselves. “HOLD IT OR I’LL SHOOT, myself in the foot!!!!”

  • JaneE

    They hate blacks more than they love themselves, and that is just plain sad. And it has been going on for a long, long, long time.

    If you want to do something good for everyone, it helps to start where there aren’t enough of “those people” to benefit. Once the whites have something first, then maybe it can be extended to minorities, but if “those people” will get the benefits, people who are for something in principle will find an excuse to vote against it.

    Public schools, Social Security, Medicare, even the right to vote are under attack, because some think it is better to do without than to let others benefit. I used to think this country was better than that.

  • dcinsider

    There will be idiots, let’s not get concerned about them. We won. Unless SCOTUS changes membership (a distinct possibility) our war is over. Don;t focus on these idiots, focus on the candidates for President who would appoint SCOTUS justices that would over Obergefell.

  • DGT

    Regarding white people and the welfare state, those on the right implicitly admit it whenever you talk about Scandinavian-style socialism. They’ll say “Oh, sure, it works in an ethnically homogeneous country, but …”

    Whenever I have challenged someone on that statement to explain how ethnicity has any bearing on the success of social programs, they can’t. But obviously what they are saying is that social programs succeed when everyone is white. I don’t see how there is a possible non-racist component to that argument.

  • The Webcast Guru

    As a resident and citizen of Tennessee, I have not become desensitized to the shenanigans our uber-conservative legislators bring to bear upon the people it serves. I have just stopped shaking my head in shame. it’s very expensive to live here. Now you know why.

  • Gerald Parks

    HUMPT …nasty …these people are just plain nasty!

  • They will be laughed out of the courtroom, because there is no way any federal court will allow marriages which were entered into with good-faith expectations they were valid and legal to be invalidated and retroactively declared null-and-void*. (Especially not when this includes roughly what? About 95% or more hetero marriages?)

    It may be a misdemeanor to solemnize a wedding between two people not eligible to marry, but that only applies if one knowingly does so. When presented with a perfectly legitimate marriage license, there is no rational reason to presume the people presenting it aren’t eligible to marry under civil law.

    Moreover, we can look back at the aftermath of Loving v. Virginia in 1965. Despite the fact a number of states had marriage laws specifically banning mixed-race marriages, the invalidation of the race exclusion part did not and was never found to invalidate the entire set of marriage laws. Even though there were still plenty of bigoted state legislators who would never vote to remove their anti-miscegenation laws from the books and bigoted governors who’d gladly veto any such attempt. Obergefell is no different: It just ruled that the ‘one man and one woman’ exclusion was itself unconstitutional and should be struck.

    The courts, from local all the way up to SCOTUS have ruled any number of times on the constitutionally-supported severability of parts of laws, unless there is specific and rational language inserted in the statutes to restrict severability…and even that’s been overuled a few times when it was proven there was no reason other than to try to limit the courts’ power. I’ve looked at the Tennessee same-sex marriage ban and there’s nothing in it to indicate any legislative attempt to restrict or eliminate severability of it with respect to the rest of their state’s marriage laws.

    But hey, what do I know? As Nicho notes below, people assume the guy who claimed he could commit cold blooded murder on a city street and still be supported can’t actually be elected. Anything is possible these days.

    (* = The 2004 San Francisco / Mayor Newsom marriages don’t count because as one of the participants, I remember being asked to sign a waiver indicating acknowledgment our just-registered marriage might not be upheld.)

  • nicho

    And people are saying that Donald Trump couldn’t win the general election. In the wacky world that the US has become, anything is possible.

  • Kara Connor

    It’s clear that ALEC and their cronies are trying to implement a campaign of state bills to roll back LGBT civil rights in every state. There are currently two bills put forward trying to make it illegal for trans people to use the restroom ls in Washington state without a genital inspection.

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