CLEVELAND, Tenn. — A lawsuit that claims the U.S. Supreme Court's recognition of same-sex marriage invalidated Tennessee's marriage license law might go to trial in February, if a judge doesn't throw it out of court first.
Attorney and Christian activist David Fowler says the high court's June 2015 ruling in Obergefell v. Hodges essentially nullified the state law that says marriage licenses only can be issued to a man and woman.
The Tennessee General Assembly specifically added the "man and woman" language in 1995, and state voters adopted a constitutional amendment the next year with the same language, he said.
But Obergefell holds that 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."
Since the Tennessee General Assembly hasn't amended the state marriage statute to comply, Fowler contends, the law is invalid and there's no way to get a legal marriage license in the state. That could include all the marriages performed in Tennessee since the ruling.
And he has a couple of plaintiffs who have authority to perform marriages but say they are afraid to do so because they could be prosecuted for submitting an invalid license to the county clerk.
Plaintiffs Guinn Green, pastor of Kinser Church of God, and Howard Thompson, a county commissioner, filed suit last year in Bradley County Circuit Court against County Clerk Donna Simpson. They're seeking to stop the county from issuing marriage licenses and to have the state's marriage license law declared invalid.
At the time, American Civil Liberties Union legal director Thomas H. Castelli said the suit and a similar one Fowler has in Williamson County "are just another attempt to get around the Supreme Court's ruling that the freedom to marry is a fundamental right."
Special Judge Mike Pemberton, of Roane County, heard arguments Wednesday on Simpson's motion asking for summary judgment, a ruling in her favor before a trial.
Simpson's attorney, James F. Logan Jr., noted that the clerk lawfully issued same-sex licenses on directions handed down from state officials reacting to the high-court decision. He said Simpson is entitled to summary judgment based on Obergefell.
"The Constitution controls the law of our country, even in Bradley County," Logan said.
While Fowler objected to the motion, he spent the bulk of the hearing on his own arguments why the Supreme Court's ruling "usurped" the Legislature's right to decide on marriage laws and handed it instead to judges.
Fowler said it's up to the General Assembly, not county clerks or state or federal judges, to enact laws regulating marriage. He suggested state lawmakers could just rescind marriage licensing statutes and go to the "natural right" of marriage under common law.
He took the judge and lawyers through a lengthy argument that included the dictionary definitions of male and female, the difference between "and" and "or," and the idea that Tennessee lawmakers could define marriage and pass a law limiting judges' jurisdiction over it.
"I'm fighting for the rule of law and that words mean what words mean," said Fowler, a former state senator from Signal Mountain and founder of the conservative group Family Action Council of Tennessee.
Pemberton noted the statute doesn't say "only" a man and woman can get a license and asked whether Obergefell would stop a county clerk from issuing a license to such a couple.
No, Fowler said.
"Does the 14th Amendment [equal protection under the laws] apply everywhere but Tennessee?" Pemberton asked. " You're arguing the apparatus of the state can sit by and not take any steps whatsoever to implement Obergefell."
What recourse would same-sex couples denied a marriage license have to enforce their constitutional right, he asked — file a lawsuit?
Also present for the hearing was Deputy Attorney General Alex Rieger, who said many state statutes beyond licensing requirements involve marriage, from paternity and support to wills and estates, property rights and more.
That means the state has an interest in and an intent to recognize marriage rather than just stay out of it, and Obergefell requires equal marriage rights for same-sex partners, Rieger said.
One remedy could be for a court to declare the "man-woman" language unconstitutional but uphold the rest of the licensing statute, he said. That's known as "elision."
But an easier way might just be to look at gender definitions in Title 1 of state law, which states that any definition of "masculine" also includes "feminine" and "neuter."
"Title I is much cleaner and saves these marriages Obergefell has blessed," he said.
Pemberton didn't immediately rule on the motions. Logan's office said Friday a tentative trial date of Feb. 20-22 has been set.
Contact staff writer Judy Walton at email@example.com or 423-757-6416.