By David Tulis
A bill filed in the Tennessee general assembly shows a remarkable level of constitutional sagacity and debt, all the while saying “Nuts!” to demands that Tennessee is wholly surrounded and should surrender.
That single word is the famed response of U.S. Anthony Clement McAuliffe, told to surrender after being surrounded by German forces in Bastogne during the Battle of the Bulge.
The bill HB1412 and SB1437 cites the dissent in the U.S. high court opinion Obergefell v. Hodges and defends both marriage and the authority of the state to determine its own laws apart from judicial imperialism in Washington.
Obergefell “not only tramples on state’s rights,” Rep. Mark Pody says in a statement, “but has paved the way for an all-out assault on the religious freedoms of Christians who disagree with it. This bill calls for Tennessee to stand against such unconstitutional action in hopes that other states will stand with us against an out-of-control court legislating from the bench.”
Mr. Pody and Sen. Mae Beavers outline the doctrine of the lesser magistrate, also referred to as nullification and interposition in which a lesser civil authority or body defies an evil edict, order or rule from a higher body in the name of God or under the authority of a higher law.
Resistance theory revives
The bill lays says resistance to overreach is essential to constitutional government, and suggests oaths of office are not mere public ceremony and self-important political swaggering, but guarantee constitutional government at each point at which a constitution is being attacked or undermined.
The bill cites Wisconsin’s rejection of federal slave laws and a supreme court ruling upholding slave-owners’ rights, and makes an explicit defense of marriage as being ordained of God and not within the subject matter jurisdiction of the U.S. government or any of its departments.
No to judicial supremacy
Obergefell is “an act of will, not legal judgment,” and the “right it announces has no basis in the constitution or th[e] court’s precedent” (quoting Chief Justice Roberts) and other dissenters.
Conceptual problems in the bill are at least two. One is that a statute somehow is needed for the state to obey its own constitution, which is a higher force at law than a statute. But legislators see no other prospect of getting Gov. Haslam or the legislature to stand on the authority granted in the constitution, and so seek a new tide of words to shore of marriage.
Secondarily, the bill imports an error from the Obergefell dissenters. Namely, that liberties exist only if they are mentioned or directly implied in the constitution. Liberties, in fact, are not enumerated, and any listing in any constitution does not exhaust them.
But accounting for these faults should not keep you from expressing your support of this plan. Pody-Beavers rightly places supremacy in the law of the land, not a court.
Obergefell is “an an opinion lacking even a thin veneer of law” and “is a naked judicial claim to legislative indeed, super-legislative power; a claim fundamentally at odds with our system of government,” the bill says, quoting from Obergefell’s dissenters.
Marriage law long has been a dominion of the states. “A mere two years prior to Obergefell v. Hodges, the Supreme Court stated that ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.”
The Obergefell high court assumes subject matter jurisdiction and purports to rule against Tennessee and other the states with marriage in their constitutions. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States,” the bill states, citing Windsor. The 2013 Windsor opinion overturns the federal defense of marriage act on states’ rights grounds, saying a federal definition of marriage wrongly pinched gay-marriage states.
The Pody-Beavers bill exorcises the concept of judicial supremacy to favor a more biblical created order under the supervision of constitutional government, declaring that Obergefell can no more rule against marriage than can the court “strike down the law of gravity or other natural laws.”
Common law origins
Marriage is a common law right, and every man has the authority before God and man to marry a woman of his choosing. The bill tracks the common law sources of marriage to point out it historically has been between one man and one woman. God makes marriage, the bill states, relying partly on a natural law description of it. Natural law is “law of nature, being coeval with mankind and dictated by God himself, is of course superior in any obligation to any other. It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this,” quoting William Blackstone, the English jurist.
Natural law theory is evident in the bill, giving it less vigor theologically but making it generally more palatable to legislators and members of the public.
False history in Obergefell
The legislation also cites the 9th and 10th amendments in the federal constitution as a source of authority. These “reserve all powers not explicitly delegated to the federal government, to the people and states.”
Obergefell sees under the 14th amendment, ratified in 1868, a right to gay marriage. Quoting the Obergefell dissent, that ruling holds that “‘every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003,’ which is absurd.”
I suggest that the oath of office is the mechanism for resistance to lawless civil authority among those, in towns and counties, sworn to uphold state and federal constitutions. Pody-Beavers takes into account this powerful claim oaths make to bind individuals to their promises, and their promises to written authority.
Gov. Haslam and state legislators operate under their oaths of office. Because “the fulfillment of this oath, in the American tradition, may not be read to contradict justice, reason, and natural law,” and because “not all orders claiming authority under color of law are in fact lawful,” and because “unlawful orders, no matter their source – whether from a military commander, a federal judge, or the United States Supreme Court – are and remain unlawful, and should be resisted,” the bill declares, gathering up its courage.
Resistance — an American tradition
Resistance to tyranny is an American habit of thought. At least it was. “The American tradition is one of resistance to unlawful orders; and our system of federalism envisions a political stance of resistance by states and their government officials against lawless federal court orders.”
The bill cites with favor the resistance by Wisconsin’s supreme court in the 1850s to the federal fugitive slave act, which it declared unconstitutional and a “violation of natural law.” When the U.S. court rebuked the Wisconsin judges, “the Wisconsin Legislature passed a series of resolutions
denouncing the actions of the United States Supreme Court as ‘an arbitrary act of power … without authority, void and of no force,’ and urging ‘positive defiance’ by the states as the ‘rightful remedy,’ and Wisconsin officials refused to obey the United States Supreme Court.”
In other words, resistance to Washington is not new in state governing polity. Other states at the time, Maine, Massachusetts, Connecticut, Rhode Island, and Michigan “actively nullified the Fugitive Slave Act and repugnant decisions of the United States Supreme Court.”
‘Does not have unlimited power’
Pody-Beavers reminds the general assembly that the high court “does not have unlimited power, but is a court of limited jurisdiction” that cannot by its opinions amend the constitutions and reorder the relationships among the parties to the federal compact and their distinct authorities. Obergefell is one of a string of lawless opinions, the worst of which is Roe vs. Wade, which pretended to block state governments from defending the unborn from death, and the general assembly has a duty to defy it, the bill says.
The last page of the eight-page document lands a punch that essentially restates Tennesseans’ rule for marriage. It’s the state’s duty to defend marriage, that marriage remains Tennessee law “regardless of any court decision to the contrary,” any such ruling being “unauthoritative, void, and of no effect.”
It directs the attorney general to continue defending marriage, and by implication undoes his and Gov. Haslam’s capitulation to poofter opinion the day Obergefell was published June 26, 2015. The bill restores the state to its status quo ante, and avers that no official shall be harassed, disseized of property or arrested for defending marriage.
Restating the obvious
One might ask why propose such a measure when the Tennessee constitution is clear about marriage. ‡ Why would anyone pay attention to a bill that reaffirms state law that is being ignored by Gov. Haslam on down? Why suppose a bill, mere statute, can do anything to support the constitution, which is like proposing plastic to support steel?
Pody-Beavers gives the general assembly a vehicle with which to protest, a means by which the ideas of nullification and resistance are articulated. Inserting the bill into public law reaffirms the people’s interest in marriage prior to the Obergefell revolution, and gives representatives a basis for opening the tomb into which constitutional government — and courage — have been buried by the state’s bar and elected officials.
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Source: “Rep. Pody, Senator Beavers File “Tennessee Natural Marriage Defense Act,’ Chattanoogan.com, Sept. 17, 2015. http://www.chattanoogan.com/2015/9/17/308475/Rep.-Pody-Senator-Beavers-File.aspx
‡ The state constitution says: “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.”
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