Just one day after a Tennessee House committee rejected a bill to nullify the Supreme Court’s marriage equality decision, the head of the state’s top conservative organization filed a lawsuit hoping to, at the very least, stall same-sex marriage. And he has the support of several state lawmakers.
David Fowler, head of the Family Action Council of Tennessee (FACT), filed the state suit in Williamson County, asking County Clerk Elaine Anderson to cease issuing marriage licenses until the suit is resolved. His contention relies on a mix of odd technicalities relating to the impact of the Obergefell decision on Tennessee law, particularly the idea that the state’s entire marriage statute was invalidated. He argues that because lawmakers would never have passed a marriage law inclusive of same-sex couples, there is no longer any law stipulating marriage for any couple, and thus all marriage licenses issued in the state since last June are void. This, he fears, exposes the pastors who join him as plaintiffs to liability, because a separate Tennessee statute dictates that it is a Class C misdemeanor to solemnize a wedding between two people not legally eligible to marry, punishable by a $500 fine.
But Fowler doesn’t hide the fact that his clear intent is to create legal pathways to discriminate against same-sex couples, and perhaps even overturn Obergefell. He lays out his master plan on the FACT website, complete with a flowchart of the way he hopes to manipulate the case to undo marriage equality:
“This lawsuit asserts the simple proposition that an invalid law is no law,” Fowler explained at a press conference last Thursday. “And the power asserted by the Supreme Court is nothing less than a power, by court order, to enact or replace a law that it has ruled invalid.”
State Rep. Susan Lynn (R) has filed a resolution in the House supporting the lawsuit. “I have dozens of sponsors, and the message of my resolution is clear,” she claimed. “We as a state have been violated, and we expect the doctrine of separation of powers and the principles of federalism reflected in our Constitution to be upheld.” According to the state legislature’s website, Lynn’s resolution already has at least 16 cosponsors, all Republicans.
Fowler is so confident in his reasoning that he believes it could have been used — or even still could be used — to circumvent the integration of schools required by Brown v. Board of Education. Since nothing required the state of Arkansas to have a law that creates public schools, the state could have just eliminated public schooling all together and let all families homeschool their children. “The Supreme Court could not have forced them to create a school system,” Fowler said. “How would they do it?”
Many have roundly condemned, if not mocked, Fowler’s lawsuit. State Sen. Jeff Yarbro (D) said he thinks the courts will make quick work of the suit and marriage equality will stand. Chris Sanders, executive director of the pro-LGBT Tennessee Equality Project, said that any attempt to block the clerk from issuing licenses “is directly in violation of the Supreme Court ruling.”
Hedy Weinberg, ACLU of Tennessee executive director, similarly reacted that this attempt to circumvent Obergefell “undermines our American value that the government should treat everyone equally under the law and not discriminate.” State Democratic Party chair Mary Mancini added that the lawsuit “is an affront to our values of equality under the law,” noting also that Fowler’s suggestion that the proper response to Brown would have been to disassemble public education was “unimaginable.”
So far, no Republican has taken Mancini’s suggestion that they denounce the lawsuit.
Tennessee is one of the four states that was directly involved with the Obergefell case, and same-sex couples have been accessing marriage there since June.