“So we’re just awaiting direction from the attorney general if a decision comes down. If we get that guidance then we’ll fulfill the legal responsibility of the office.”
— Bill Knowles, Hamilton County clerk
By David Tulis
The preparations for a high court opinion against marriage are full of excitement and a sort of dread.
Officials around the country are counting on a pro-gay opinion and are trying to update forms and procedures to receive a rush of Jim-Joe couples seeking to enter the estate of matrimony.
Gay lobbyists are reading celebratory speeches, events and have schedules piled with commitments to attend marriage ceremonies among gay brethren.
The interest in constitutional government empowered by oaths to uphold it is not strong in Tennessee. “Wayne Mashburn, president of the Tennessee County Clerks Association, said the clerks will take their direction from the County Officials Association of Tennessee,” as the Associated Press says. “The director of that association, Jay West, would say only that they are “first waiting to see what the Supreme Court decision is.” Earlier, Mr. West had said, “They have to abide by the law, whatever the law is, quite frankly.”
In the office of Gov. Bill Haslam, temporizing of the same order. “[D]iscussions have been happening” at the state Attorney General’s office and the various departments. Until an opinion is issued, “it’s hard to say what the ‘ifs’ and ‘buts’ are,” the governor tells the AP.
Our interest in constitutional government and the rule of law suggests that in the ranks of public servants much less of such interest is to be found.
In the department of safety and homeland security, officials are considering how to accept gay unions and homosexual marriages contrived in other states, not recognizeable under Tennessee law. “Once the Supreme Court decision is released the department will consult with staff attorneys and the Attorney General’s office on any action that may need to be taken,” spokeswoman Dalya Qualls says.
The Associated Press says that an overturning of gay marriage “bans” would make Tennessee’s constitutional provisions on marriage “void and unenforceable.” Says a Tennessee newspaper, “If the Supreme Court rules in favor of gay marriage, the decision will require local clerks in states without a gay marriage provision to begin issuing marriage licenses to same sex couples.
Faithless to oaths?
The analysis most suited to constitutional principles is that of constitutional supremacy, not judicial supremacy, which is the implied holding of all the preparations in Nashville and in county attorney offices around the state. Constitutional supremacy says that the constitution is owned not by high courts, but by the people and their representatives.
County clerks have as much duty to interpret and obey the state and federal constitutions as to the nine justices in their whited facility in Washington. Their duty is enlivened by their oaths of office, uttered in public, before many happy witnesses, and in the presence of God, whose name and promise is evoked in their oaths of office. Often these oaths are done over a Bible, doubly clarifying which deity is guaranteeing their promise (or else).
Judging by the hedging in the press, it is fair to say that the oaths to the constitution of Tennessee are lightly held, readily disposed of if circumstances dictate.
A federal court opinion is a ruling is a law, and we are bound by that law; what else can a good county clerk do? He simply throws up his hands, says the matter has been removed from his authority, has been stripped from his purview and control, and that he must obey. Is that not the rule of law? Is that not real government? Is that not constitutional government — that Gov. Haslam and the attorney general and everybody else in Tennessee, down to the county clerk, obey a high court opinion declaring gay marriage is a constitutional right?
The neutron bomb theory of law is in operation across the state as officials wait for the “verdict” of the supreme court. That theory says that a string of words from that grand body — a string no doubt that will run past 200 pages — is of sufficient merit and warrant to destroy any meaning in the state’s marriage amendment. Article 11, section 18, is now a mere relic of the past, a series of marks on a page that have no meaning, no import. The words
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
among others, mean nothing. It’s as if they are houses, office buildings, warehouses, parks, restaurants and other bits of architecture in a city that have been hit by a neutron bomb. The bomb detonates, destroys all living creatures down to the insects between the walls, but leaves the buildings standing.
Our law becomes hieroglyph
That is the theory devised by legal scribes, those great ones in the lawyer guild whose members fill legislatures and offices of the executive branch. In their theory a democratically enacted law is so much Chinese hieroglyph. Not even that — because Chinese characters can be translated. But the law is converted into space-filler Chinese hieroglyphic of the “lorem ipsum” sort used by publishing software to fill space with a faux type. (The lorem ipsum text is typically a scrambled section of De finibus bonorum et malorum, a first-century BC Latin text by Cicero, with words altered, added, and removed to make it nonsensical, improper Latin.)
Such is the power of the supreme court if it rules against marriage. Whether the justices intend it or not, the effect of their words (as they well know) is to sweep across the landscape like the shockwaves from a bomb, and destroy all life touching on the point at issue. They know how their fellows at the bar will advise all officials: an opinion is law, and none dare stand before it.
Marriage will be deconstructed, and the claims of the 50 states to regulate, oversee, guard and protect marriage as public policy, is wrenched from them and their people.
The solution, however, is boldly stated with the above-cited provision. No “foreign jurisdiction” can have any say over what has since the founding been a state matter. Marriage is a state issue, at the most. It is a personal right God gives every man and woman, and is a common law right. You have a right to marry, and no one can take it from you, not even licensing and recording regimes in Tennessee and the other states. County clerks such as Bill Knowles should stand their ground and say they will abide by their oaths and license and record only lawful marriages.
This power is that of the doctrine of the lesser magistrate, explored here and elsewhere (see Matt Trewhella’ important book, The Doctrine of the Lesser Magistrate). By this power, enlivened and emboldened by a proper sense of constitutional government, good men resist a tide of evil, defy tyrants, deflect false claims of authority, protect their people, protect a state’s institutions.
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Sources: Andy Sher, “Haslam: State preparing for gay-marriage ruling,” Chattanooga Times Free Press, June 18, 2015
Travis Loller, “TN officials waiting for gay marriage ruling before action,” Wrcb.com TV3, June 22, 2015
My good-faith clerk analyses
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Bad faith and its bitter fruits; constitutional obedience is ‘good faith’
How local, state officials in ‘good faith’ defy alien jurisdictions
Clerk facing gay mudslide can act in good faith, say ‘sorry, boys’
Gleanings from sniveler’s lips: Oath of office controls duty of marriage clerks
Truth be told; how clerks, judges may cheerfully reject gay fibs in public record
Judges give glad defense of democratic processes, states’ rights, federalism
U.S. judge defends authority of states to define marriage
Rejecting lesser magistrate doctrine, a governor betrays state, citizens, sovereign