Sohn: But wait, what about our freedom to divorce?

Jeff Atherton speaks in the Hamilton County Courthouse in this file photo.
Jeff Atherton speaks in the Hamilton County Courthouse in this file photo.
photo Chancery Court Judge Jeff Atherton gestures in this 2010 courtroom photo.

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Judge declines divorce case, citing gay marriage ruling

Politics is a divisive subject. Especially in this hyper-partisan era of our country.

Just ask Thomas Bumgardner, 65, and his wife, Pamela, 61, who remain married today despite filing for divorce in September 2014 and going before Hamilton County Chancellor Jeffrey Atherton last week seeking the finalization of that divorce.

Instead, the ruling from Chancellor Atherton was not a divorce decree, but a dismissal of their petition - wrapped in a political manifesto decrying the recent U.S. Supreme Court decision on same-sex marriage.

Atherton, a Republican, was first elected in 2010 to fill out the term of retired Chancellor Howell Peoples.

"I hope I can continue the tradition of fair and impartial jurisprudence that Judge Peoples had," he told the Times Free Press on the evening of his first election. He was re-elected in 2014 when he had no opposition.

But "fair and impartial" doesn't seem to gibe with Atherton's recent action when he used the Signal Mountain couple's case as a defacto op-ed to argue his discontent over the Supreme Court's Obergefell v. Hodges decision earlier this year.

In his judgment, Atherton wrote that because the same-sex marriage case, which included Tennessee plaintiffs, affected what is recognized as a lawful marriage, judges now need the higher court to determine what isn't a marriage.

"The Tennessee Court of Appeals has noted that Obergefell v. Hodges affected what is, and must be recognized as, a lawful marriage in the State of Tennessee. This leaves a mere trial level Tennessee state court judge in a bit of a quandary. With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee's judiciary must now await the decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage."

He goes on: "The conclusion reached by this Court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces."

And he mocks: "Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new 'super-federal-judicial' form of benign and benevolent government, termed 'krytocracy' by some and 'judi-idiocracy' by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court. In any event, it should be noted that the victory of personal rights and liberty over the intrusion of state government provided by the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested."

The Bumgardners and their attorneys, Jillyn O'Shaughnessy and Pamela O'Dwyer, told Times Free Press reporters they did not wish to comment on the matter. In his office Wednesday, Atherton defended his decision but declined to discuss it.

"I don't want extraneous conversation," he told our reporter. "I'll have to stick with the words of the order."

But Regina Lambert, one of the lawyers who represented Tennessee plaintiffs in the Supreme Court case, was blunt:

"He is just making a statement," Lambert said, noting that the Supreme Court's decision was about marriage equality - not divorce.

"I just think change is hard for people," she said.

Tell that to the Bumgardners - who now, if they still want a divorce, will have to re-file their petition, pay additional court costs and pay their attorneys still more. For that matter, tell it to all the future divorce filers whose cases may come before Atherton - a judge who now, apparently, will be always looking for a higher court's direction in all cases about marriage.

Chattanooga attorney Mike Richardson pretty well summed up, with tongue in cheek, the Supreme Court same-sex ruling's overarching impact: "I don't know for sure, but I suspect the U.S. Supreme Court did not intend to pre-empt divorce law."

Partisanship seems to work best in Capitol domes and on newspaper editorial pages - not in courts, churches, schools and our everyday lives. Perhaps next time, Chancellor Atherton might just consider writing a letter to the editor.

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