Tennessee County Clerks Warned About Issuing ‘Void and Unenforceable” Marriage Licenses

Jan 6, 2020

FRANKLIN, Tenn. (January 6, 2020) – Today, county clerks in all 95 Tennessee counties should be receiving a letter from the Constitutional Government Defense Fund warning them that they are still subject to the provision in Tennessee’s Constitution that makes “void and unenforceable” any policy or law “purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman.”

In the letter, David Fowler, general counsel for the Constitutional Government Defense Fund, a sister organization of The Family Action Council of Tennessee, said that by issuing marriage licenses to same-sex couples, the county clerks are “interpreting and administering” the state’s marriage licensing statute in violation of Tennessee’s Constitution and said this interpretation of the state’s licensing statute is “at least void and unenforceable as to those licenses being issued to same-sex couples.”

In the letter, Fowler included a copy of the Final Order and Permanent Injunction issued after the U.S. Supreme Court’s decision in Obergefell v. Hodges regarding various state marriage laws. He noted that even two months after that decision, Federal District Court Judge Aleta Trauger did not enjoin the provision in Tennessee’s Constitution cited to the county clerks.

Fowler noted that on the day of the Obergefell decision, the state’s attorney general and reporter, Herbert Slatery, told the state’s County Technical Services Association that county clerks could issue marriage licenses to same-sex couples.

However, Fowler also referenced in the letter and included with it a copy of a legal memorandum the attorney general filed in federal court more than a month after the Supreme Court’s decision in which his office objected to an injunction that would apply to all of the provisions of the Tennessee Constitution governing statutes, specifically the provisions that apply to the state’s licensing statutes.

The legal memorandum shows that Attorney General Slatery did object to an injunction that would cover the provisions of the Tennessee Constitution applicable to the state’s marriage licensing statutes on the ground that the same-sex couples who had sued the state did not “seek the wholesale invalidation” of them.

Fowler backed up his claim that the “null and void” provision in Tennessee’s Constitution is still enforceable with the enclosure of an official opinion from the attorney general’s office from 1984.

In that opinion, the attorney general said, “[U]nder Tennessee case law and the relevant case law of other jurisdictions, the public, individuals, and ministerial public officers are required to consider a statute as constitutional until declared otherwise by a court of competent jurisdiction.” When it comes to issuing marriage licenses, county clerks are “ministerial officers,” said Fowler.

Fowler said, “It is indisputable that no court has declared the provision in Tennessee’s Constitution unconstitutional and enjoined its enforcement. So, if this is the opinion of the attorney general, then it should apply with even greater force when it comes to interpreting how a decision of the U.S. Supreme Court regarding another state’s law applies to Tennessee’s laws. This seems especially true when Judge Trauger could have chosen to enjoin enforcement of the state constitutional provision in question and didn’t do so at the attorney general’s urging.”

Fowler agrees with the legal argument the attorney general made to Judge Trauger. However, he disagrees that the attorney general should have advised county clerks “to ignore Tennessee’s Constitution.” Fowler reasons, “It is a huge federalism and separation of powers problem.”

The letter did not threaten any legal action against the state’s county clerks but said the issue was being brought to their “attention as a matter of professional courtesy” while ministers Fowler is representing “consider what steps should next be taken by them . . . to be assured that they are not affirming a form of civil marriage contrary to their beliefs.

On December 19, Fowler filed a Petition for Declaratory Order with the Tennessee Department of Health on behalf of several ministers and an independent Baptist organization questioning the constitutionality of the state Certificate of Marriage they sign upon performing a marriage ceremony. Governor Lee’s administration has until February 17 to respond.

A copy of the letter and enclosures is available at this link.

David Fowler, general counsel for the Constitutional Government Defense Fund, a sister organization to The Family Action of Council of Tennessee, is available for comment.

Media Contact: Laura Bagby, Director of Communications
Phone: (615) 261-1338
Email: laura.bagby@factn.org
The Family Action Council of Tennessee (FACT) was formed in 2006 by a group of citizens concerned about the growing negative impact of public policies on marriage, families, life, and religious liberty. It is led by former Tennessee state senator and attorney David Fowler.

FACT’s mission is to secure the blessings of liberty by advocating for God’s design for the family. For more information, visit factennessee.org.

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