By David Tulis
A former Hamilton County judge played a part in wrecking an effort to get state government to obey the constitution.
Rep. Mike Carter of Ooltewah in a 4-1 subcommittee vote helped deny a larger hearing for the Tennessee Natural Defense Marriage Act that would have emboldened the general assembly to reassert its government over marriage and obey the state government’s supreme authority. In 2006 the people amended their constitution to declare marriage as between one man and one woman.
Rep. Carter opposes the Obergefell v. Hodges opinion of June that declares marriage to be within the jurisdiction of the federal government and declares it to be whatever homosexuals and other individuals determine it to be.
But the member of the Republican party voted against the measure that was warmly argued for 1 ½ hours Wednesday before his panel.
He voted no because the bill was too fierce and would have put Tennessee government on a collision course with the third and weakest branch of the federal system, the judiciary. “You’re asking us to step out where no one has stepped before,” he said, adding that the bill to ignore the decision by the nation’s highest court should be the last resort.
“I equate nullification with anarchy,” he said. “Nullification scares the daylights out of me. Because no one will answer me who has the authority to nullify, and nobody will answer me where that authority is derived.”
The former sessions court judge said the federal court did not interpret law but created it, as four of the high court judges themselves argued in a bitter dissent.
“I think that there are real constitutional questions about this decision and where it leaves Tennessee today,” Rep. Carter said after the hearing.
Carter says marriage shattered
Mr. Carter agrees with a daring opinion by Chancery Court judge Jeff Atherton, who in a widely noted Aug. 31 opinion in the Bumgardner case says Obergefell makes impossible state regulation of divorce or any facet of marriage.
“Is there a marriage statute in Tennessee?” Rep. Carter demanded after his vote. “It is my personal opinion that there is no way to be legally married in Tennessee today.”
Rep. Carter’s position fuels the argument that attorneys should not be elected to the general assembly because they are constantly averse to risk and because they live and breathe the doctrines of judicial and executive supremacy.
The marriage bill was intended to recognize its stake and the stake of its people in marriage, and to declare the federal supreme court’s opinion as “an arbitrary act of power … without authority, void and of no force.” These words are from Wisconsin’s government in rejecting the U.S. fugitive slave act in 1854.
The marriage bill was intended to act in terms of the moderate position of interposition and nullification recognized as essential in the federal system by the founders. Among these is James Madison, who explains the system of divided government that is the hallmark of U.S. political liberty. It envisions pitting interest against interest, department against department, and claim against claim. Madison argues in Federalist 51 the federal system of competing power keeps the U.S. within its bounds and preserves the interests of the states.
“Ambition must be made to counteract ambition,” Madison says, favoring a policy of “opposite and rival interests” to keep government in a constant “dependence upon the people.”
To Rep. Carter, orderly and tidy officer of the judicial branch now wearing a legislator’s hat, such a balancing act is chaotic.
The ‘extremity’ of nullification
Mr. Carter denies nullification is a moderate measure. He sees it as an extreme one. While the marriage bill asks the state to enter a place “no one has stepped before,” nullification is the elusive mild middle step.
Defenders of the 10th amendment frequently point out how nullification is temperate, even genial — a way to politely say “Make me. Now get lost.”
A nullification vote would have affected a tiny area of state interest. Tennessee would have declared that it reserves to itself foundational prerogatives to regulate marriage, and that if the U.S. had any objections, do something about it.
It is unlikely, had the bill become law, the U.S. would have resorted to the most extreme next step. The U.S., showing mildness, would not have resorted to military or police force, but would have reminded the state of its client status. Washington would have moved to stanch the flow of free dollars accounting for 40 percent of Tennesseans’ incomes.
This cost analysis impressed Mr. Carter, aware of the dependence to which Republicans and Democrats have long accepted. The bill’s financial note said its passage might cost the state F$6.5 billion from ObamaCare and Medicaid and F$2 billion in food stamp money.
Rep. Carter, attorney, has the same mind about remedies as David Fowler, attorney, head of the Family Action Coalition of Tennessee. They favors more legal arguments before judges and their oaken-paneled courtrooms, with the final arbiter of that process the very jurists who wrote Obergefell despite lack of subject matter jurisdiction over marriage.
“Why throw out two or three methods by jumping to what I think is the final step, not the first step?” Rep. Carter said Wednesday
Says Matt Trewhella, a backer of the bill here from Milwaukee: “In spite of the fact that many GOP politicians (especially in leadership) and those that lead statewide pro-family and pro-life groups do not like the doctrine of the lesser magistrates, it continues to grow as many people and magistrates see its goodness and its proven effectiveness in past history. This doctrine ends their cozy relationship — it will end the status quo.”
Rev. Trewhella’s book, Doctrine of the Lesser Magistrate, is a sensation in Christendom for its analysis of a historical and biblical doctrine.
“Lesser magistrates have the best chance of resolving injustice without upheaval or bloodshed,” it says. “A tyrannical government is less anxious to push for their oppression if the know that the opposition has the proper leadership and order of lesser magistrates. When the lesser magistrates refuse to comply with unjust or immoral law, the matter can often be resolved in favor of what is right without armed revolution or bloodshed being necessary” (P. 18).
The doctrine of the lesser magistrate asserts that a county clerk such as Bill Knowles has authority to obey God and obey the constitution by rejecting any lawless opinion, edict, law or command. It directs Mr. Knowles to honor his oath of office and uphold the people’s marriage amendment.
— David Tulis hosts a program 9 to 11 a.m. weekdays at AM 1240 Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond.
Stacey Barchenger and Joel Ebert, “House panel kills ‘natural marriage’ bill,” The Tennessean, Jan. 20, 2016. http://www.tennessean.com/story/news/2016/01/20/subcommittee-kills-natural-marriage-bill/79068204/
The Associated Press, “House panel rejects bill blocking gay marriage in Tennessee,” Chattanooga Times Free Press, Jan. 20, 2016. http://www.timesfreepress.com/news/national/tennessee/story/2016/jan/20/house-panel-rejects-bill-blocking-gay-marriag/345759/