Probably anyone claiming to be politically and constitutionally conservative knows that the United States Supreme Court constructed its First Amendment Establishment Clause “wall of separation between church and state” out of Thomas Jefferson’s use of that phrase in a letter he penned to the Danbury Baptist Association in Connecticut. Now Baptist ministers in Tennessee have effectively written their own such letter, but this one is to an appellate court in Tennessee in regard to same-sex marriage.
Tennessee Independent Baptists for Religious Liberty (TIBRL) was given permission last week to file a friend-of-the-court brief in an appeal involving a lawsuit filed in January 2016 by a couple of ministers in Williamson County, Tennessee, over whether the state’s marriage licensing statutes were still valid after the U.S. Supreme Court’s decision on same-sex marriage, Obergefell v. Hodges.
Getting to file an appellate brief may not seem like a big deal, but the nature of the claims asserted by the organization in its brief could be a huge deal.
Understanding the Background
Toward the end of last year, the Tennessee Court of Appeals held that the local ministers had not been “injured” by the licensing law, and, thus, did not have standing to file an action asking the courts to declare whether the licensure laws were still valid.
But, in doing so, the Court of Appeals reasoned that the marriage license law had to be valid because Obergefell required states to issue marriage licenses to same-sex couples. Moreover, the court reasoned, the ministers had alleged they would not officiate a same-sex marriage and had not been asked to do so. That meant that state licensure of marriages between same-sex couples didn’t “injure” them.
To make a long procedural story short, the validity of the Court of Appeals’ judgment of dismissal is now back before that court.
What the Baptists Are So (Free) Exercised About?
TIBRL’s brief asserts that if the appellate court thinks state law now defines marriage without regard to the two biological sexes and that definition is, in fact, the law, then a state law requiring the organization’s ministers to sign a license is a problem for them.
TIBRL argues that by signing the license and administering the law, their constituent ministers are communicating and agreeing to the state’s new message and views about the nature of marriage. And requiring them to do so as a condition of the marriage they officiate being given legal recognition is, in their view, government-compelled speech and a violation of the free exercise of religion.
Turning the Logic of Obergefell Against Obergefell
However, there is an even larger constitutional point to consider, though not raised in TIBRL’s brief, and it presents an irony of such great constitutional proportions it would be funny if the problem the U.S. Supreme Court has created were not so serious.
Consider what happened in Obergefell. Same-sex couples sued various states saying it was a denial of their 14th Amendment “liberty” right for the state to define marriage in only one way, a way that excluded their ideas about what marriage is.
The Supreme Court agreed. These same-sex couples’ claims were a particular application of the first sentence in Justice Kennedy’s Obergefell opinion, “The Constitution promises liberty to all within its reach a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
So, if a state is constitutionally prohibited from defining marriage by statute in a way that excludes the view of marriage espoused by same-sex couples because of a judicially made-up “liberty” right in the 14th Amendment, isn’t a state constitutionally prohibited from defining marriage in a way that now excludes a couple from having the state recognize the Christian male-female view of marriage?
But, same-sex couples will cry, “A man and woman can still marry!” But that misses the point the Independent Baptist ministers make in their brief:
They (and perhaps the original Minister Plaintiffs) have no intention of solemnizing a same-sex marriage. Yet, that may be exactly what TIBRL’s Ministers have been doing for the last four years and may be doing if they continue to solemnize marriage licenses. This is so because all marriages in Tennessee are same-sex marriages if this Court’s interpretation of Obergefell [is] correct. . . .
This Court and the Trial Court may have conflated the existential fact that the marriages solemnized by Minister Plaintiffs were or would be comprised of an opposite sex couple with the definition of marriage by statute.
To paraphrase what the ministers next said and apply it to a couple makes the point: It is to the civil law that a couple must bow if they are to solemnize a marital relationship that entitle them to the state and federal benefits and rights accorded marriage, and some may not, in good conscience, be able to bow down before such a civil law. This, so the argument goes, is a restriction on their 14th Amendment “liberty” in regard to the “right to marry.”
Such a claim would confront the Supreme Court with the fact that its “right to marry” may have made everyone’s understanding of marriage a marriage state law must acknowledge or else it is violating that couple’s constitutional liberty. But, if anything anyone believes to be a marriage is a marriage, then everything is potentially a marriage.
That kind of liberty in relation to marriage makes marriage meaningless! And the assertion of such a claim might just cause the Supreme Court to rethink Obergefell.
Like the Danbury Baptist Association of old, these Tennessee Baptists might have raised an issue as to Obergefell’s interpretation that could result in a wall of separation between state laws regarding the nature and meaning of marriage and dictates from the judicial branch of the federal government about the same.
David Fowler has his doctorate in jurisprudence and served in the Tennessee state Senate for 12 years before joining the Family Action Council of Tennessee (FACT) as President in 2006.