Liberals Sound the Alarm. Will Conservatives Hit the Snooze Button? Again?

Dec 8, 2022 by David Fowler

Liberals Sound the Alarm. Will Conservatives Hit the Snooze Button? Again?
A Fox News story on Monday noted that the more progressives think through the Respect for Marriage Act the more their “joy diminishes.” Their reason for discontent is one to which conservative policy makers and legal advocates, Christians, and Republicans have not yet awakened. Reading the article was, for me, vindication, and the despair of liberals a hope for change going forward.
The story noted that Washington Post columnist Jonathan Capehart, who is a homosexual, described the reason his joy over the Act’s passage was diminishing as follows, "What the act does not do is require states to issue marriage licenses in contravention of state law.”

Breaking Down Capehart’s First Objection—Licenses to Same-Sex Couples Are Not Required

Capehart is right about the absence of any federal requirement that states issue marriage licenses to same-sex couples. His statement is a measure of personal vindication because I have been saying the same thing since 2015 to every legal and policy organization I know and to every Tennessee elected official (state and local) with whom I have met.
Why do I so emphatically assert that Capehart is correct? Apart from the legal arguments I have made in the past, it is this simple:  If states were already required by Obergefell to issue marriage licenses to same-sex couples, Capehart would have had nothing to complain about.  The issuance of such licenses would already be required. 
It isn’t required except in those few states that have expressly enacted statutes to require it. Tennessee has not done so, yet every elected official in Tennessee from the governor down to the local county clerk acts as if it is required. 
Given that elected officials in states like Tennessee are doing what Capehart wants anyway, why is he not happy? He knows an elected official in some state will some day wake up to the legal reality Capehart woke up to and then realize it is unconstitutional of him or her to act “in contravention of state law.” And that official might just wake up some of his or her slumbering colleagues. Then the game of “constitutionally required” same-sex marriage will be over.
Liberals now see what conservatives have failed to see. Instead of conservatives gathering in 2015 or thereafter to understand fully what the Obergefell decision did and did not do, and develop a strategy to limit or reverse it, they hit the snooze button. 

Breaking Down Capehart’s Second Objection—Same-Sex Licenses Violate State Law

Capehart also concedes that to “issue marriage licenses” to same-sex couples in states like Tennessee (and about 40 others!) is “in contravention of state law.”
I don’t even know what to think of that, given that every state and local official takes an oath to uphold their state constitution when it is not in direct conflict with the federal constitution. Yet, on this issue, all those in more than 20 states that adopted constitutional amendments limiting marriage to a man and woman have not sufficiently considered their oath.
However, unlike the previous point, this one needs a bit of explaining. But it is not hard to understand if one wants to.

An Analogy Explaining Why Capehart’s Second Objection Is Correct

An Analogous State Law: Let’s put the issue in a context other than marriage. Assume Tennessee’s Constitution prohibits the sale of English teas within the state’s borders (think Boston Tea Party put into the state’s Constitution).  
Makers of English teas sue in federal court for discrimination on the grounds that Tennessee law says, “Any type of tea other than English teas may be sold in this state.”  It is like Tennessee’s Constitution saying it recognizes matrimony between a man and woman, but not between other combinations of the sexual dimorphism known as male and female, which is what, in fact, it says.
Assume further that the Supreme Court holds that if Tennessee's statutes allow other forms of teas to be sold within its borders, its statutes must allow English teas to be sold as well. That would be analogous to Obergefell’s holding that if a state chooses to issue marriage licenses, it must issue them to couples of the same sex as well as to opposite-sex couples.
Note that the Supreme Court did not order Tennessee’s legislature to legalize the sale of English teas. Note that the Court did not order Tennessee to allow tea to be sold in the state. The reason it did not order the state to do either of those things is because the Court cannot make a law for the state of Tennessee (or any state)!
Just as the Supreme Court could not change Tennessee’s “English Tea law,” it could not change Tennessee law on marriage licensing.
How State Legislators Should Respond to ‘English Tea Law’ Holding
State legislators, still reeling from the tea tax imposed by the English on the colonist in the 1700’s, say to the Supreme Court, “No way! Tennesseans voted against selling English Tea!” 
So, they repeal the tea statute and enact a new law prohibiting any tea from being sold in Tennessee. Let’s assume Tennessee voters think it better to go without tea than support English teas. 
Is the New ‘No Tea” in Tennessee Law Constitutional?
The state legislature would be acting consistent with the prohibition in the state Constitution about English teas. It is not being sold in Tennessee. 
It would also be acting consistent with the Supreme Court’s holding because there is no longer any discrimination against English tea. Tea just isn’t sold in Tennessee, period.
Only in this way could Tennessee’s elected officials adhere to their oath to uphold both constitutions when it is possible to do so. 

Will Conservatives and Christians Hit the Snooze Button Again?

Now that liberals have called everyone’s attention to the constitutional fact that states are not required by the U.S. Constitution or any federal law to issue marriage licenses that “contravene state law,” will conservative lawmakers and Christians hit the snooze button again? 
They should not, because the solution is right in front of them: the Marital Contract Recording Act.

Why the Marital Contract Recording Act is Constitutional.

The Act rests on the proposition that the marital relationship between a man and a woman does not come from the government, let alone any licensing statute. I suspect most Tennesseans would say that is true.
It rests on the proposition that a man and woman form a marital relationship by making certain types of promises to each other. I suspect at least most Christian ministers would say that is true.
Finally, it doesn’t discriminate. Allowing a man and woman to file an affidavit with the County Clerk, under penalties of perjury, that they have married is consistent with the Tennessee Constitution.  The state is not creating or “legalizing” anything by any legislative act. The man and woman create the marriage, not the state.
This is consistent with Obergefell. Since the state is not issuing a marriage license, and thereby “creating” a man-woman marriage by any enacted law, the state itself is not discriminating against anyone.
Both constitutions are “happy.”
If you believe in the rule of law, state legislators upholding their oath of office, and matrimony as a relationship defined by the union of a man and woman, consider telling your state legislators and your minister not to hit snooze again when the legislative session convenes in 2023. Urge them to support the Marital Contract Recording Act.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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