By David Tulis
County court clerks facing the gay mudslide in the Chattanooga area have a duty to consider their high office, and whether they will stand by the state constitution and their oaths, come what may in June from the high court in Washington.
That court may pretend to issue an opinion about marriage, a provenance which from the founding has resided among the states and their peoples. Most states have replaced common law marriage with statutory regimes. But no matter: They recognize still that marriage is between one man and one woman, especially in the South, which fought a war of independence in 1861 over whose rules direct people’s lives within the states.
A county clerk is no slight scrivener, scribe or scribbler’s office. A clerk has by virtue of election a “right, and correspondent duty, to exercise a public trust and to take the emoluments belonging to it,” says a Tennessee legal encyclopedia.
Bill Knowles is a public officer as his “duties are those to which a portion of the sovereignty of the state attaches” during his time in office.
Mr. Knowles, Dwight Minter in Marion County and Charlotte Cagle in Sequatchie hold the office of clerk as a “species of property,” an authority says. It attaches to their bodies: “It is an incorporeal right, and consists in the right to execute a public trust.” An injury to that right of office is an injury “to a private right for which there ought to be a remedy.” An officer has a right to speak, and a right to refrain from speaking.
The people yield to the clerk
It’s not the formal induction into office that makes Mr. Knowles’ our clerk. It’s not that he has a property right in the clerkship (he does). Rather, it is election by the people that is the power to elevate him into public service. The law is said to abhor vacancies in office, and that Mr. Knowles is re-elected to public acclaim avoids having to consider the precautions taken to guard against their occurrence.
Bound by law
A public official may have learned by public activism, attending meetings, reading and by a clerk duty class in Nashville about how to perform his job. But his duties are defined by law. In a controversy, his appeal is always to the law and his obedience to it. Public officials “cannot invoke any provision of the constitution to enable them to suppress facts connected with public business under their control,” notes TennJur. Neither, might I suggest, can they CREATE FACTS CONNECTED PUBLIC BUSINESS under their control. Is declaring a Jim-Joe union a marriage doing just that, creating facts and attesting to a union as fact that he knows, pursuant to Tennessee law, is not a marriage?
The power of ‘ministerial’ duty
We come now to the question of Mr. Knowles, our county clerk, and what is referred to as his ministerial duty. It is ministerial because his duty is not his own. It belongs to the people, and the laws imposed upon them by their elected legislatures and governors.
Is Mr. Knowles doing his ministerial duty to “obey” a federal opinion declaring Jim-Joe marriages legal, and the state’s definition of marriage illegal? If the federal supreme court says that any law holding marriage between man and woman is illegal and unconstitutional, is Mr. Knowles keeping with his duty to reject it? Or does that court’s opinion bind him to alter his practice?
If he declares Jim and Joe married by extending them a marriage license and recording their union as marriage, is that an act of obedience, or is it an act of discretion? Is it ministerial and obedient, or does it constitute a violation of his oath?
In what direction does the clerk’s duty lie? Does the clerk “obey” a court opinion? Does he obey Tennessee law and the constitution until such records are altered by a vote of the people, or by the general assembly?
My argument in favor of local economy and constitutional government suggests that his ministerial duty, his nondiscretional steps, are to obey the law. It’s a position, suitable to a man of democratic spirit, a man familiar with the people who keep re-electing him who holds that legislatures make laws, and courts give opinions.
In support of his enlightened intransigence in face of the shrieking gay lobby and its blacked robed supporters (if our fears are borne out) are four reasons. I suggest they are wonderful. One’s living out of one’s oath, a fear of perjury in declaring as fact a statement or record in which one disbelieves, one’s unwillingness to touch even the shadow of the oppression statute, one’s confidence in the voting public, one’s fear of God who requires all those who swear before Him to uphold their swearing, even to their own hurt.
OK, that’s five reasons.
Question not just for lawyers to decide
But to get back to the public officer definition. If the high court pretends to redefine marriage, and the risk-averse county attorney says fighting is a lost cause, can a county clerk stand on principle, come what may? Might he be right, even though the legal guild clamors for federal supremacy as explained in many U.S. opinions?
The answer isn’t simply legal. It’s moral, it’s personal, it’s religious. Mr. Knowles is no usurper, no cad, no stranger pretending to the duty of scribe and recorder. He’s the genuine article. He keeps the record, he keeps the law, he maintains the constitution despite what everyone may say against him. Its provisions are mandatory, and no provision shall be construed otherwise. Gouge v. Burrow, 119 Tenn. 376,104 S.W. 526 (1907). The constitution’s construction of marriage, until changed by the people, are his building blocks.
The object of the constitution “is to give effect to the intent of the people ***. It must be enforced according to such manifest intent. This intent is to be found in the instrument itself; it is to be presumed unless an examination of the instrument demonstrates otherwise ***. The ascertained intent must be enforced.”
County clerks in Tennessee have reason to defy ANY outside authority if that outside authority (even if a whited judicial tombstone in Washington, D.C.) pretends to order them to ignore marriage and join in in marriage’s deconstruction.
Source: Public officers, Tennessee Jurisprudence, Vol. 21