David Fowler, a former state legislator who has made a lucrative industry out of trying to make life harder for LGBT people in Tennessee is at it again. Yes, Fowler has sent a letter to all 95 county clerks in Tennessee, pointing out that by issuing marriage licenses they are violating the Tennessee state constitution, and threatening to bring legal action against those that do not cease. The problem? The US Supreme Court in 2015 declared that laws such as the one he references violate the US Constitution.
As in similar past cases, any such laws still on the books are unenforceable. As the Chattanooga Times Free Press wrote, "After the 2015 Supreme Court ruling allowing gay marriage, former Gov. Bill Haslam announced the state would follow the decision. State Attorney General Herbert Slattery also said Tennessee must follow the decision in spite of the apparent contradiction with the state's constitution."
Title XI Section 8 of Tennessee's Constitution holds that "the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state" and that any other interpretation will be "void and unenforceable in Tennessee." However, it is not within the power of the state to declare that its law is above that of the nation. Many see Fowler as attempting to confuse and frighten clerks into violating Federal law, as well as to recruit true believers as plaintiffs for new cases until he can find courts that won't dismiss his cases outright. In the letter Fowler doesn't directly threaten legal action, but merely suggests he represents clients exploring their options.
The latest of the many cases Fowler has attempted to bring against same-sex marriage involves a claim on behalf of 11 ministers that the existence of same sex marriage somehow poses a "grave civil rights issue" threatening their freedom of speech - even though there are no laws requiring any minister to solemnize a wedding for same sex couples.
Chris Sanders, executive director of the Tennessee Equality Project, told the Times Free Press, "We are well aware that some continue to look for ways to deny and ignore the plain meaning of the Obergefell ruling and the 14th Amendment to the U.S. Constitution ... Marriage equality is equal protection of the laws and it is the law of the land."
Fowler responded to an LGBT publication, The Washington Blade, to say, “The purpose of the letter was simply that which was stated, to call to the attention of our county clerks the constitutional fact that the provisions in our state constitution applicable to marriage licenses have not been enjoined by a court or repealed by vote of the people, meaning they have not been excused from complying with it and, because they are purely administrative officials, they have no judicial authority to interpret the U.S. Constitution or the Tennessee Constitution or to interpret licensing statutes in light of the language in the two Constitutions and the Obergefell ruling...They are not judges.” Of course, Fowler fails to point out that the state's attorney general and governor did in fact interpret the constitutions just so, and provided guidance on how clerks should respond.
If any county clerk turns you away without a marriage license without an adequate explanation, please report this to editor@outandaboutnashville.com. CLICK HERE for more about Fowler's involvement in the crusade to persecute LGBT people in Tennessee.