Bill asks U.S. congress for marriage remedy, rejects common law solution

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Rep. Mark Pody's defense of marriage bill is the focus of new efforts to get it out of a Tennessee subcommittee. Christian opponents of the bill helped kill it with talk about how challenging the U.S. would cost billions in federal tax money.

Rep. Mark Pody’s defense of marriage bill — stuck in a Tennessee subcommittee — continues to be the focus of pro-marriage Christians. But their ranks are divided. A pro-family critic of interposition helped kill it with talk about its potential cost in lost U.S. cash.

Marriage belongs to every man and to every woman as a creational right. Yet defenders of marriage in Nashville look not to restoring marriage to individuals, but to courts and to the federal congress for relief against recent judicial homosexual victories.

A joint resolution being weighed in the state senate makes a remarkably clear analysis of the federal judiciary’s violent and lawless deconstruction of statutory marriage in Tennessee.

By David Tulis

But it goes on to plead to the U.S. congress for relief. It urges “Congress to return the definition of marriage to the states and take actions to restrain the federal judiciary.”

Not in view is any sense that marriage belongs to individual citizens and residents of Tennessee. Rather, marriage belongs to state government, and the State of Tennessee behind it, as against the federal authority through its court.

Piled up in the “whereases” of the three-page resolution is the federal supreme court’s language in an opinion called Bond v. U.S.

Excellent analysis of federalism

It “declared that the federal system rests on the insight that “freedom is enhanced by the creation of two governments, not one,” a system overturned by the pro-gay opinion Obergefell v. Hodges.

“Federalism *** serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another” and “preserves the integrity, dignity, and residual sovereignty of the States.”

“This federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.”

The federated structure among states and the federal agency allows local policies that are “‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”

Federalism “secures the freedom of the individual” and allows states “through the enactment of positive law” to let peoples in states to shape their own destiny “without having to rely solely upon the political processes that control a remote central power.”

This summary of the American system of divided government admits a key point little considered — that of positive law. States acting against their citizens have enacted positive laws about marriage rather than leaving the exercise of marriage rights to the people. Their legal systems effectively seize areas of life such as marriage from the people and grant new powers to the state. Tennessee marriage controls date from the late 1700s.

The resolution rightly complains about Obergefell. The bill praises “the constitutional analysis used by five of the nine Justices on the United States Supreme Court in Obergefell v. Hodges ***

to take away from the states jurisdiction over the definition of marriage and substitute a new definition for the one legislatively enacted and ratified by the overwhelming majority of the individual voters of this state, could be applied by the United States Supreme Court to any number of other state functions and any number of other policies inherently and historically left to the states, in derogation of the rights reserved to the states under the Tenth Amendment and the rights of its citizens reserved to them under the Ninth Amendment.

Bill asks national remedy, not local

The resolution is fine thus far. But the remedy of the federal court’s demolition of its marriage authority is not the people, a decentralization of marriage and a devolution of the marriage statutes.

It is, rather, the federal congress, one of the world’s most corrupt organizations.

The bill resolves to urge the congress “to act with all diligence in presenting to the states for ratification an Amendment to the United States Constitution that would return power over the definition of marriage to the people of the various states.”

Rather than do the easier thing — get out of the marriage business entirely — the bill seeks congressional support for something the state already has full authority to do: Define marriage and defend it under the U.S. and state constitutions.

The sponsors also want the U.S. congress to hold hearings to tell “the people what actions it will take to restrain the power of the federal judiciary and restore to the people and the states” their rights under the 9th and 10th amendments.

Local economy in marriage

In a final flourish of gratuitous self-abasement, the bill proposed that “an enrolled copy” of the resolution be submitted to the speaker and clerk of the federal legislative houses. With that administrative detail, all will be in order.

The solution is another example of American political giantism — an impossible-to-pass multi-year effort to amend the largely ignored federal constitution.

The solution is local economy in marriage. In other words:

Marriage at common law. Every man and woman has a right to marry from God himself. Marriage pre-exists church and state. The state should vacate its entire marriage ordinances in the Tennessee Code Annotated.

If that step is too bold, the people’s representatives could simply declare their independence on marriage, despite the opinions of the lawyer guild. They could affirm politically what the lawyers deny. They could affirm constitutional supremacy rather than judicial supremacy, which attorney David Fowler of Family Action Coalition of Tennessee and others uphold as a matter of professional courtesy. Such affirmation would be under HB1412, the Tennessee Natural Marriage Defense Act, the so-called Beavers/Pody bill.

The solution to the gay and federal wrecking of statutory marriage is marriage in local economy. If you are here, and your bride to be is here, you marry at common law. For why would any man not marry in local economy when he can, and instead ask the state for permission to wed when it is his God-given right?

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