Christians and the law

Sometime during the last month Gene Davenport, a leading supporter of left swinging politics, delivered an editorial to the Jackson Sun. His title “Christians and the law” came to our attention. In the article, Dr. Davenport is attempting to rationalize why citizens within the state of Tennessee should recognize the ruling made by the Supreme court on marriage a couple of years ago as the law of the land. This not only shows his ignorance of law, and may well show his love of immoral actions within the state.

He begins his argument:

Issues of church and state have arisen many times in the U.S. with regard to what is legal and what is illegal in the relationship between the two. Today, a major issue is whether bakery shops must prepare wedding cakes for same-sex marriages. But having necessarily purchased public service licenses to engage in those businesses leaves no question. Licenses include no provision for excluding service for persons of whom the holder disapproves. The service must be available for anyone of proper age and with money to pay. Otherwise, persons could be refused service on the basis of height, eye color, hair color, or any number of characteristics. Were there still laws against same-sex marriage, refusal to sell a wedding cake for such an event would be legally appropriate. Since such weddings are now legal, however, businesses licensed to sell wedding cakes may not refuse on that basis.

Scott Conger with Friends at Frank McMeen’s home

Of course, unlike the supporters of same sex marriage, we tend to disagree. In fact so much so that it might just be about time to question the actions of the County Court Clerks in Tennessee.

All this may start in Bradley County, Tenn., where there is a storm brewing and according to our friend David Fowler, “it’s not over whether the sheriff there should be convicted of the various crimes for which he’s been indicted. It’s a lawsuit that puts on “trial” a question about whether the Bradley County Clerk’s Office has been acting illegally, and if so, then your county clerk may have been acting illegally, too.”

Mr. Fowler is known for leaving a prominent position with the Tennessee State Legislature to take up the hellacious battle to defend families in Tennessee against.

David is reminding us that in February 2016, he filed a lawsuit through his organization’s Constitutional Government Defense Fund on behalf of a minister and a county commissioner living in Bradley County. One of their claims, as citizens, was that their right to vote for legislators who would not change our state’s marriage licensing laws was being infringed upon because their county clerk (and, indeed, all Tennessee’s county clerks) was issuing marriage licenses to same-sex couples when the licensing statute, which has never been changed by the Tennessee State Legislature or ruled on by any court. The law as it stands clearly says that licenses could only be issued to “male and female” applicants.

This week the judge who will be hearing arguments on the merits of that case on December 13th put down a ruling with potentially huge implications.

What Happened With the Marriage-Licensing Case

The ruling by the trial court was on a motion by more than 50 Tennessee legislators asking to intervene in the lawsuit to stop the county clerk from issuing marriage licenses to same-sex couples that our state’s statutes had never authorized her to issue. Their argument rested on the fact that our state Constitution expressly provides that only the Legislature can “prescribe” any duties and powers to a county clerk.

The question, therefore, was this: On the basis of what authority, then, were county clerks issuing marriage licenses to same-sex couples, since the Legislature had never passed a statute “prescribing” to them any duty or power to issue such a license?

This question was particularly compelling to the legislators since the United States Supreme Court had held that licensing laws like ours were “invalid.” How, they wondered, do you have authority to issue any license under a type of licensing statute that the Court said is constitutionally invalid and we’ve not enacted a statute to take its place?

In essence, the legislators wanted to protect their authority to prescribe the county clerk’s duties and stop the county clerks from assuming an authority that had not been prescribed to them. When officials do acts that they are not authorized to do, we lawyers call them “ultra vires” acts. Non-lawyers might simply call them illegal or unlawful.

What David is telling us:

What the Court Said

The trial court denied the legislators the right to intervene, but what it said in doing so is what’s important. The trial court said,

[Legislators] argue the clerk is committing an ultra vires act and that the current parties to the lawsuit cannot protect [their interest], . . . but [the complaint] contains allegations of ultra vires acts on the part of the Clerk and prays for relief of enjoining her from issuing marriage licenses. From that the [Legislators] assert that they are the proper party to make the ultra vires argument. The court disagrees and specifically finds that the plaintiffs are the proper party to make the ultra viresargument.

What It Means

In other words, the trial court was saying that the citizen plaintiffs have a legal right to argue that the county clerk has been acting illegally and unlawfully1 and, thus, the legislators don’t need to get involved at this point.

This does not mean the court will rule in the plaintiffs’ favor after the arguments on the 13th are fully evaluated. However, it does mean that the court recognizes that the scoffers were wrong—that there is an open constitutional question that a state court must decide, namely, what should be done with Obergefell’s holding that marriage licensing statutes like ours are invalid?

The answer to that question should be very interesting. Stay tuned.

David wanted to make this clear, that this is not to condemn all our county clerks or Bradley County’s clerk in particular. They just did what the state’s attorney general told them to do. But his advice, like that of any lawyer, might prove to have been wrong.

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