House Joint Resolution 529 supports the legal arguments made in Williamson and Bradley counties that seek to defend federalism, separation of powers and the doctrine of severability, which the plaintiffs feel were disregarded in the Obergefell v. Hodges decision.
The lawsuits claim the Obergefell decision invalidated all of Tennessee’s marriage law and further the Court’s decree stating states must now marry same-sex couples is a violation of separation of powers and the doctrine of severability.
In the ruling, the Supreme Court declared marriage laws across the nation are invalid to the extent they exclude same sex couples, and then further decreed states must immediately allow same-sex couples to marry, despite the fact that only four states were part of the decision.
The plaintiffs point out that Tennessee’s marriage law was held invalid by the Court because it does exclude same sex couples — therefore there is no marriage law in Tennessee. With no law, they are unable to lawfully marry anyone.
They further contend when the Court decreed that states must immediately marry same-sex couples, it unconstitutionally breached the separation of powers. The plaintiffs protest the Court has no power to make law or amend current law by any ruling especially after the same court declared the law invalid. Making law is the role of the legislative branch of government.
Others claim the Court did not make law, but merely severed the part of Tennessee law that makes marriage applicable to one male and one female. However, the plaintiffs contend even that argument is lawfully impossible because it violates the doctrine of severability by making Tennessee’s marriage law into something neither the people nor the legislature ever would have passed.
“It is clear that in 1996, the state legislature voted to ensure that marriage was only applicable to male and female applicants,” Lynn said. “This was reaffirmed by the legislature in 2004 and 2005 when the legislature passed resolutions to amend the Tennessee Constitution with the same language. The very next year the voters too affirmed this policy by approving the Constitutional Amendment by 81.3 percent of the vote.
“Therefore, according to the plaintiffs, the court is unable to lawfully use the doctrine of severability to make the existing marriage law apply to same-sex couples because it is clear that neither the people nor the legislature would have intended for the law to mean same sex couples can marry; meaning that the only options available to the court is to do nothing or to strike the entire law.
“The resolution passed [Friday] by a vote of 73-18. I wrote this resolution because the legislature is without standing to sue the court over their decree that purported to make new law in Tennessee. Our vote on this resolution affirms our state sovereignty and our guaranteed constitutional right of separation of powers and the doctrine of severability.”
Susan Lynn is chairman of the House Consumer and Human Resources Subcommittee. She lives in Old Hickory and represents House District 57, which encompasses western and northern Wilson County. She can be reached by email at [email protected] or by calling 800-449-8366.