Lawyer says Tennessee's county clerks are violating state constitution by allowing same-sex marriage

Staff photo by C.B. Schmelter / David Fowler, with the Constitutional Government Defense Fund, takes notes during a hearing before Judge Mike Pemberton in the courtroom at the Cleveland Municipal Building on Wednesday, Dec. 13, 2017, in Cleveland, Tenn. Fowler, on behalf of Bradley County Commissioner Howard Thompson and Kinser Church of God Pastor Guinn Green , filed a lawsuit to prevent Bradley County from issuing marriage licenses in response to the U.S. Supreme Court ruling allowing same-sex marriage.

The lawyer for a conservative advocacy organization sent a letter Monday to all 95 Tennessee county clerks and the governor arguing they are violating the state's constitution by issuing marriage licenses to same-sex couples.

David Fowler, general counsel for the Family Action Council of Tennessee's Constitutional Government Defense Fund, said in the letter the state's clerks are breaking Title XI Section 8 of Tennessee's Constitution, which reads, "the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state" and that any policy, law or judicial interpretations that challenge that will be "void and unenforceable in Tennessee."

Fowler, who is representing a group of 11 Christian ministers challenging the Tennessee Department of Health over the constitutionality of the state's marriage license, said his clients face a "grave civil rights issue" of conscience and with the First Amendment after the 2015 Obergefell v. Hodges Supreme Court decision that allowed same-sex marriage.

Tennessee Equality Project President Chris Sanders said in an email Fowler's letter is part of a larger effort to defy the U.S. Constitution.

"We are well aware that some continue to look for ways to deny and ignore the plain meaning of the Obergefell ruling and the 14th Amendment to the U.S. Constitution," Sanders said. "Marriage equality is equal protection of the laws and it is the law of the land."

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After the 2015 Supreme Court ruling allowing gay marriage, former Gov. Bill Haslam announced the state would follow the decision. State Attorney General Herbert Slatery also said Tennessee must follow the decision in spite of the apparent contradiction with the state's constitution.

The Tennessee Attorney General's Office declined to comment on the new letter.

Fowler, a former state senator from Signal Mountain, has brought multiple lawsuits against Tennessee counties on similar grounds. Most of those cases have been dismissed, including in Williamson County in 2018 when Fowler argued the 2015 Supreme Court decision on same-sex marriage invalidated all state marriage laws.

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