This week, every single one of the 95 county clerks in the State of Tennessee received threatening letters accusing them of breaking the law and violating civil rights… all for doing their jobs by issuing marriage licenses to same-sex couples.
The letters in question came from David Fowler, a practicing lawyer who is deeply involved in efforts to challenge the 2015 Supreme Court decision that made same-sex marriage legal across the United States of America.
As general legal counsel for the Constitutional Government Defense Fund, an initiative run by Family Action Council of Tennessee (FACT), he was involved in the state’s earliest challenges the Obergefell ruling. Currently, he’s also partnering with Tennessee Independent Baptists for Religious Liberty (TIBRL) as they file a legal challenge against the Tennessee Department of Health, claiming ministers’ conscience rights are being violated when the government requires them to sign marriage certificates that “define marriage without regard to the sex of the two parties.”
That case appears to have inspired him to send the letters, which refer repeatedly to the TIBRL case, using dense, intimidating legal language to implicate county clerks in a violation of his clients’ civil rights:
The Department’s Certificate is inextricably tied to the marriage license issued by County Clerks that, according to Tenn. Code Ann. 36-3-103(a), is the legal document that actually authorizes my clients to solemnize the marriages they conduct by ceremony… However, the issuance of licenses by county clerks to persons other than a “male and female contracting party” as stated in Tenn. Code Ann. 36-3-103(a)(1) presents my clients with a grave civil rights issue of conscience under the Tennessee [Constitution], Article I, section 3, as well as a grave civil rights issue under the First Amendment to the U.S. Constitution regarding the free exercise of religion and government-compelled speech.
Confused? That’s probably the goal.
In conversation with noted LGBTQ news outlet The Washington Blade, Fowler described his intentions:
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fact that the provisions in our state constitution applicable to marriage licenses have not been enjoined by a court or repealed by vote of the people, meaning they have not been excused from complying with it and, because they are purely administrative officials, they have no judicial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.
Neither are all of us, but we have to follow the law, too.
In any case, Fowler is just admitting that he wants to make county clerks nervous that they might be falling afoul of the law if they continue to do their jobs as they’ve been instructed.
It’s true that, as it currently stands, the state’s Constitution defines marriage as existing only between one man and one woman and insists that any other understanding of marriage is “void and unenforceable.”
However, following the historic Obergefell v. Hodges decision on marriage equality, even the state’s attorney general, Herbert Slatery, acknowledged that Tennessee was legally obligated to abide by the Supreme Court’s decision — a fact that Fowler neglected to mention in his letters. It’s the same reason that some states have constitutional provisions blocking atheists from holding public office even though those laws are all unenforceable.
According to Chris Sanders, president of the Tennessee Equality Project, Fowler’s letters amount to little more than a bad-faith attempt to undermine settled law:
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.
It’s hard to avoid the impression that Fowler is playing with emotional manipulation here. He’s sent county clerks hefty packets with an important-looking letter full of hard-to-parse jargon, backed up by no less than five enclosures packed with legalese, and he’s playing on understandable fears of repercussions in the hope that maybe, somewhere in Tennessee, some LGBTQ couple will have a harder time getting a marriage license because of him.
Does he seriously believe this is what Jesus would have done? (Does it even matter to people like him?)
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