Hamilton County Chancellor Jeffrey Atherton isn’t saying, but his recent order dismissing a local divorce petition for lack of subject matter jurisdiction appears to reflect the incredulity those in and out of the legal profession expressed at the U.S. Supreme Court’s gay-marriage decision in June.
“With the U.S. Supreme Court having defined what must be recognized as a marriage,” Atherton wrote, “it would appear Tennessee 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.”
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Judge declines divorce case, citing gay marriage ruling
Justice Anthony Kennedy, in his narrow, 5-4 majority opinion in the Obergefell v. Hodges same-sex marriage case, said the definition of marriage was not static and never had been. He said marriage evolved from a time when women were married off to men chosen by their parents to an arrangement that served procreative purposes to today’s set-up of marrying whoever you want for whatever reason you want. So the majority decided the definition now would be static – “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Dissenters such as Chief Justice John Roberts and Justice Samuel Alito said the dispensation of marriage is not a constitutional question.
“This Court is not a legislature,” Roberts wrote. “Whether same-sex marriage is a good idea should be of no concern to us. If you favor expanding same-sex marriage, by all means celebrate today’s decision. But do not celebrate the Constitution. It had nothing to do with it.”
“The question in these cases is not what States should do about same-sex marriage but whether the Constitution answers that question for them,” Alito wrote. “It does not. The Constitution leaves that question to be decided by the people of each State. For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.”
Even if Atherton were just making a personal statement or expressing disagreement with the Supreme Court’s ruling, he offered plenty of other reasons for dismissing the complaints as he did.
But wondering “when a marriage is no longer a marriage” is a valid thought after five jurists decided to change something that, as Alito said, “is far beyond the outer reaches of this Court’s authority to say” about “the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.”