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David Fowler, president of the Family Action Council of Tennessee, speaks at a news conference at Legislative Plaza in Nashville in this Tuesday, March 5, 2013, file photo.
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The lawsuit

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NASHVILLE — A day after Tennessee Republican lawmakers shot down a bill that purported to "nullify" the U.S. Supreme Court's same-sex marriage decision, former state Sen. David Fowler filed a state lawsuit he believes ultimately can lead to the nation's highest court's review of its gay marriage ruling.

The legal action was filed in Williamson County Chancery Court against county clerk Elaine Anderson, who is responsible for issuing marriage licenses.

Fowler, a former Signal Mountain GOP lawmaker and attorney who now heads the Tennessee Family Action Council, said the lawsuit poses legal issues Tennessee courts need to resolve in the wake of the U.S. Supreme Court's June 26 ruling in Obergefell v. Hodges. The ruling invalidated Tennessee's 1995 law limiting marriage to unions between a man and a woman.

"The bottom line is to say to the state courts of Tennessee, you have to decide what the Supreme Court of the United States really did," Fowler told reporters at a state Capitol news conference.

He said in the high court's 5-4 decision, the majority "purported to do two things that are mutually exclusive: rule a law invalid and then rule that everyone has a right to get married under an invalid law. That inconsistency must be pointed out, raised and resolved. And this lawsuit seeks to do that."

Fowler argued the Supreme Court's ruling in effect invalidated Tennessee's entire marriage license statute as a result of a legal doctrine called "elision."

Fowler, who was a senator when the law passed, said that's because Tennessee lawmakers never intended the license statute to apply to same-sex couples.

And so the issue now, he said, is "how does anyone, regardless of the sexes of the party, get a valid marriage license pursuant to an invalid law?"

Fowler filed the suit on behalf of three ministers and along with "citizen" plaintiffs Tim McCorkle and Deborah Deaver. It seeks a declaratory judgment from Chancery Court enjoining Williamson County Clerk Anderson from issuing any marriage license until the issue is resolved. He is representing the plaintiffs on behalf of the Constitutional Government Defense Fund.

The former lawmaker, who spearheaded Tennessee's 2006 constitutional ban on same-sex marriage, said he chose Williamson because he and the five plaintiffs live there.

Fowler said he plans to file two more lawsuits in chancery courts in East Tennessee, possibly in Hamilton County, as well as in West Tennessee, probably in Shelby County.

The suit says the three ministers are concerned they are subject to criminal penalties under the Tennessee law if they fail to sign and return a marriage license to the issuing clerk's office within three days after solemnizing the marriage.

The suit asks the court to declare that sanction unenforceable.

"In particular," the suit says, "all Plaintiffs seek a declaration that those provisions of the Tennessee law relative to the licensing of marriages are no longer valid and enforceable since the Obergefell decision and that the continued issuance of marriage licenses under those circumstances violates their aforesaid rights under the Tennessee Constitution."

In short, Fowler is hoping the litigation and the questions it raises will bump the case up through state courts and eventual force the issue back into federal courts and ultimately up the chain to the U.S. Supreme Court, which made its decision last year in a bitterly divisive 5-4 ruling.

Tennessee was one of four states involved in the landmark decision that has ignited the furor of religious conservatives both here and nationally.

On Wednesday, the state House's Civil Justice Subcommittee shot down a bill called the Tennessee Defense of Natural Marriage Act, on a 4-1 vote. It claimed to "nullify" the Supreme Court's ruling.

Both Fowler and Rep. Mike Carter, R-Ooltewah, also an attorney and a member of the panel who voted against it, said nullification theories didn't fare well in the 19th century and there is no reason to think things will be any different today.

But Sen. Jeff Yarbro, D-Nashville, an attorney, doesn't think Fowler's line of argument will work, either.

"I think the courts will make quick work of that lawsuit," Yarbro said.

Hedy Weinberg with the American Civil Liberties Union of Tennessee said the "end result of Mr. Fowler's lawsuit, were he successful, would be that all marriage licenses issued after June 26, 2015, would be invalidated and the county clerk would not be able to issue valid marriage licenses going forward to anyone until the General Assembly enacted new legislation."

She called the lawsuit "just one more attempt to circumvent the United States Supreme Court's decision in Obergefell. It undermines our American value that the government should treat everyone equally under the law and not discriminate."

Obergefell, Weinberg said, "ensures that loving, committed same-sex couples in Tennessee and nationwide who want to build and share a life together will be treated with the same respect and dignity as everyone else. The decision made clear that the freedom to marry is a fundamental right protected by the United States Constitution — and this decision is the law of the land."

Moreover, she said, "regardless of any personal opinions to the contrary, Obergefell in no way affects the religious liberty of those who are against marriage equality. Fair treatment of LGBT people and the right to religious freedom are not mutually exclusive. ACLU-TN remains committed to both and to ensuring equal treatment and protection for all Tennesseans."

Contact Andy Sher at asher@timesfreepress.com, 615-255-0550 or follow via twitter at AndySher1.

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