By David Tulis

The national press focuses this week on the federal supreme court and its hearings Tuesday on marriage and whether the federal constitution bars states from their regulation of marriage, which they have done since the founding. We are encouraged to believe several patently false claims, such that states ban gay marriage, that homosexuals’ have a right to marry homosexuals and that Tennessee’s nonrecognition of this right is a moral evil and wrong and suitable to being scolded by the judges.

We are also directed to the opinions and person of Justice Anthony Kennedy, who has ruled for gay interests and whose views of gays have evolved. A story in the Wall Street Journal suggests not that constitutional law applies to the case, but Mr. Kennedy and his possible deciding vote will be decisive (“History Suggests Kennedy Holds Key to Gay-Marriage Case,” Wall Street Journal, April 26, 2015).

Indeed, the court elects good and evil based on vote. It elected to call abortion a constitutional right in 1973, and 57,762,169 babies have been destroyed by abortion since then. Indeed, decisions turn on a majority, so it is reasonable to focus one’s attention on the judge deemed to be the swing vote between liberals and conservatives.

A decision based on the constitution will declare states have the authority by plebiscite to redefine marriage in state statute. A decision rooted in the federalist and decentralized structure of the U.S. system of governance will draw on the vital elements in the Windsor decision that overturned elements of the Defense of Marriage Act based on states’ traditional rights and “sovereignty.” Justice Kennedy wrote that majority opinion, and for liberals his lengthy treatment of state authority is painful reading, indeed.

A decision sought by the gay lobby and pro-gay judges such as Ruth Bader Ginsburg will be based on willfulness dressed up in arguments drawn from the 14th amendment.

If marriage overturned, what to do?

A decision that turns against marriage should be met in Tennessee by county clerks who understand their place in the federal structure of American government.

1. Their duty, as suggested by our state constitution and their oaths, is to see a high court ruling against marriage as irrelevant, a nullity and void. Their duty is to act on several important points.

2. A high court opinions are just that: An opinion. It is not law, and does not have the effect of law. Most lawyers, trained to subservience to judicial supremacy, forget that the supremacy clause they like to mention makes the constitution supreme, not a court.

3. A county clerk’s oath of office to uphold his state constitution is binding upon him as long as he holds office. For a Tennessee clerk to yield to a Jim-Joe union and enter it as a valid marriage is an act of slavishiness and violates the compact between the clerk and the people he serves.

4. An oath of office is personally binding upon a state officer, and until the words in the constitution change — or the statute that flows from it — he is bound to uphold it as written.

5. An opinion by the high court does not absolve the clerk of his oath before God. Oaths are meant for just such times as these. A clerk who refuses to unite two gays in face of a high court ruling in their favor does so in good conscience and in fear of violating state law. Specifically, the perjury statute is his friend as he decides whether to enter Jim and Joe on the marriage record. If he knows as a fact two men cannot marry, he commits perjury and suborns perjury from his staff if he yields to their demands. Perjury is declaring as fact any thing that the speaker knows is not a fact. The perjury statute has teeth, and these are useful in protecting the conscience of the county clerk who knows as a fact of creation two men cannot marry.

Good faith and the county clerk

My analysis of the doctrine of the lesser magistrate explains briefly how county clerks such as Bill Knowles in Hamilton County, Dwight Minter in Marion and Charlotte Cagle in Sequatchie are free to exercise their good will and moral sense by abiding by state law and by acting in good faith in so doing.

For a clerk to recognize two men who engage in homosexual acts as a married couple is acting, if anything, in bad faith. He is acting against the interests of the people of the state, and in false obedience to a pretended ruling that is merely an opinion. For that opinion to be determined to be a law that overturns state constitutional provisions and state law is a fantasy, one to which many people subscribe, though often in ignorance of how the several states in their relation are constituted as the states united.

Clerks who have explained their reasoning for refusing to marry gays often resort to personal religious beliefs, stating that they cannot unite Jim and Joe in holy matrimony because it violates their personal religious convictions.

One must go farther. To sustain rebukes from one’s county attorney and threats from hot-tempered gays and their legal arm (the ACLU), one must have more than just personal conviction. One must have a legal basis for living out the constitutional life promised us by our forbears.

To supply a want in legal reasoning among faithful county clerks, I make the case for “Good Faith & the County Clerk.” Click the link and download this user-friendly 12-page booklet.

— David Tulis hosts Nooganomics.com 9 to 11 a.m. at NoogaRadio 92.7, covering local economy and free markets in Chattanooga and beyond.

Sources: Steven Ertelt, “57,762,169 Abortions in America Since Roe vs. Wade in 1973,” Lifenews.com, Jan. 21, 2015