Gay marriage back on radar with new Bradley County lawsuit

Group seeks to have Tennessee's marriage license law declared invalid

Bradley County Commissioner Howard Thompson and a local pastor have filed a lawsuit to stop the county from issuing marriage licenses and to have the state's marriage license law declared invalid in the wake of the U.S. Supreme Court ruling allowing same-sex marriage.

The suit was filed Thursday in Bradley County Circuit Court by attorney and conservative former state senator David Fowler, with the Constitutional Government Defense Fund.

It's the second lawsuit Fowler has filed in less than a month challenging Tennessee's marriage laws in the wake of the Supreme Court ruling in June. The legal director for the American Civil Liberties Union of Tennessee, Thomas H. Castelli, said the suits "are just another attempt to get around the Supreme Court's ruling that the freedom to marry is a fundamental right."

According to the suit filed against County Clerk Donna Simpson, the high court's ruling last year invalidated state marriage laws that exclude same-sex couples, which Tennessee's explicitly does.

Since the Tennessee General Assembly has not adopted new laws, the suit states, no valid marriage licenses can be issued. Anyone who performs a marriage can't return a signed license to the county clerk, and failing to do so is a misdemeanor. Anyone who marries a couple considered "not capable" of being married can be charged with a misdemeanor and fined up to $500 - and lack of a valid license means no couple is capable, the suit states.

"Given the civil and criminal penalties to which those who can solemnize marriages are subject if they do not comply with the law, it is quite understandable that they would want to know if they are still authorized to solemnize marriages if the law is 'invalid,' as the Supreme Court clearly held," Fowler said in the news release.

Fowler filed the first lawsuit in Williamson County in January, citing the same grounds.

"This lawsuit does not deny that the Supreme Court has the power of judicial review," Fowler said in a statement then. "It does not deny the power of a federal court to judge the constitutionality of a particular law. It does not deny that the Supreme Court ruled that our state marriage license law is invalid.

"And it is that point which leads to what this lawsuit does assert, namely, how does anyone, regardless of the sexes of the parties, get a valid marriage license pursuant to an invalid law?"

Tennessee added a law defining marriage as between a man and woman in 1996, and the state's voters adopted a constitutional amendment to the same effect in 2006.

But last June, in Obergefell v. Hodges, the Supreme Court ruled state laws are "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples."

The lack of valid marriage laws means neither the officiants nor the people whom they marry can know whether their marriage is valid, the lawsuit states. And the Supreme Court's decision means the plaintiffs have lost their right to vote on the laws that govern them or instruct their elected representatives, the suit states.

As a county commissioner, Thompson has authority to conduct marriages. He said Thursday he couldn't comment on the lawsuit. Green and Simpson could not be reached.

Bradley County Attorney Crystal Freiberg said the county is following its usual process for lawsuits, including contacting its insurance carrier. She couldn't comment on the content of the suit.

Contact staff writer Judy Walton at or 423-757-6416.

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