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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