Attorney general opinion says cities cannot pre-empt state laws

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Robert Cooper

Robert Cooper

By David Tulis

Chattanooga claims that two men having anal sex for 365 days or more are legally equivalent to a man making sweet love to his wife after the children are in bed. This theory faces a public vote in August. If out-of-state gay activism and a media blitz cause the referendum to fail, a legal hurdle stands tall before the ordinance.

That hurdle is Tennessee law that establishes cities as subordinate to their creator, the general assembly. Jerry Mitchell and other city council members, in creating civil unions, are, as it were, a child being dandled on the knee of its mother and slapping her in the face. Under Tennessee law, state government alone has authority to establish civil unions. Given the people of Tennessee have amended the constitution to define marriage as being between one woman and one man, such authority is unlikely to be exercised.

Knoxville and Collegedale both ultra vires, or outside lawful authority, passed gay partner benefits. Chattanooga did so Nov. 19, advised by legal staff it was acting within its powers.

State’s top lawyer makes the case

Legal research by attorney general Robert Cooper suggests domestic partners in Chattanooga are a stretch and subject to being overturned in court once litigation is filed. An opinion Dec. 6 delves into whether Winchester and 17 other municipalities have authority to write and enforce ordinances targeting precursor or source materials for meth, a narcotic made illegal by statute.

Mr. Cooper says city governments lack the authority to regulate ephedrine and pseudoephedrine because in that area of regulation the state pre-empts lesser authorities with an interest on public welfare..

➤ In the statute about meth precursor materials (39-17-431) is the following express claim for total control over the issue. “(n) This section shall supersede any local laws or ordinances currently regulating sales of products containing any immediate methamphetamine precursor.” As opposed to implicit or “field preemption,” this statement is called an “express preemption.” The general assembly has exclusive control and by this language “evidences the General Assembly’s intent to adopt a uniform statewide regulatory process that would preempt and exclude any local regulation in this area.”

➤ Mr. Cooper says statute not only looks backwards to overturn an existing ordinance, but looks into the future to prohibit such ordinances before they are passed. “The fact that both of these preemption provisions state they supersede local laws or ordinances ‘currently’ in effect does not preclude these provisions from also preempting the enactment of such local laws” [italics added].

An important rule on how to read laws

City government’s legal advisers are familiar with an important rule of how to interpret law. Yet they seem to have overlooked it in seeking to take part in the homosexual revolution, which is an ideological construct placing itself directly against the laws of nature and the laws of God. The rule of harmony among the parts applies as well to scripture as to the Tennessee Code Annotated. Mr. Cooper explains.

General rules of statutory construction adopted by Tennessee courts presume that the General Assembly acts reasonably and does not enact a statute that produces such an impractical and unrealistic result. See Powell v. Community Health Systems, Inc. 312 S.W.3d 496, 508 (Tenn. 2010) (stating courts “are required to interpret all statutes in a way that makes sense rather than nonsense”); Abdur‘Rahman v. Bredesen, 181 S.W.3d 292, 313 (Tenn. 2005) (recognizing that a court should not adopt an interpretation of a statute that would lead to absurd results). [italics added]

The harmony of law in Tennessee directs that the constitution (Article 11, section 18) and its marriage amendment be understood as conveying the intent to defend marriage in Tennessee. Supposed marriages contracted in other states are “void and unenforceable” in Tennessee. Gay unions in Tennessee are forbidden; civil unions are implicitly denied. Why? It would be an absurd, impractical and unrealistic result to say Tennessee bans gay unions as marriage without also banning the precursor legal material — domestic partnerships.

Civil unions or domestic partnerships are forbidden to the state by its people; they are forbidden to Chattanooga by the intent of the general assembly expressed in state law.

Sources: Robert Cooper, state attorney general opinion No. 13-99, “Regulation of Distribution of Ephedrine and Pseudoephedrine by Tennessee Local Governments”

Andy Sher, “Winchester chief to enforce meth ordinance,” Chattanooga Times Free Press, Dec. 11, 2013

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