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TN Complying With SCOTUS Same-Sex Marriage Ruling: Governor, AG

‘One-man-one-woman’ amendment passed by huge legislative and electoral majorities negated by U.S. high court

Gov. Bill Haslam issued a statement Friday pledging that state government departments “will comply…as quickly as possible” with a U.S. Supreme Court ruling that appears to nullify a “marriage protection amendment” added to the Tennessee Constitution a decade ago.

“The people of Tennessee have recently voted clearly on this issue,” Haslam said of the same-sex marriage ban voters overwhelmingly ratified in 2006. “The Supreme Court has overturned that vote.”

Media outlets across the state reported a rush among same-sex couples to obtain legal nuptials from duly authorized government officials in wake of the ruling.

On a 5-4 vote in the case of  Obergefell v. Hodges, Justice Anthony Kennedy, a Ronald Reagan appointee, joined the court’s liberals — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in declaring that states cannot ban same-sex marriages and also must recognize such marriages performed in other states.

Tennessee was among the states, along with Ohio, Michigan and Kentucky, where prohibitions against same-sex marriage recognition were under challenge before the high court.

Writing for the majority, Kennedy observed that society’s assumptions about marriage have been subject to modified over the ages. But marriage remains, he wrote, “a keystone of the Nation’s social order.”

“Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” he contended.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” Kennedy said. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

Kennedy wrote that it has become apparent to the 5-member majority that the state laws in question “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.”

They therefore concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

“The Court now holds that same-sex couples may exercise the fundamental right to marry,” wrote Kennedy. “No longer may this liberty be denied to them.”

The bottom line, he wrote, is that a majority on the court believes “same-sex couples may exercise the fundamental right to marry in all States.”

“It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character,” Kennedy wrote.

In his dissent, Chief Justice John Roberts acknowledged “strong arguments rooted in social policy and considerations of fairness” advanced in the majority opinion.

Nevertheless, Roberts remarked, “this Court is not a legislature.”

“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be,” wrote Roberts, who just a day before the Obergefell v. Hodges came down released a controversial opinion of his own on the Affordable Care Act. As a result of his reasoning in King v. Burwell, the chief justice — who was appointed by George W. Bush — was himself accused by critics of reconfiguring statutory language to suit a desired outcome.

Quoting Alexander Hamilton in the Federalist Papers, Roberts proclaimed, “The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment’.”

State’s Arguments Slain, Slatery Vows to Bow to SCOTUS

In the wake of oral arguments before the Supreme Court back in April, Tennessee Attorney General Herbert Slatery issued a statement reiterating his desire to see the justices leave decisions about marriage recognition to individual states.

“This has been the longstanding province of the states and our position is that it should stay that way,” said Slatery, adding that “citizens of the state (should) vote and decide such important issues.”

On Friday afternoon, Slatery issued an opinion blasting the ruling.

The majority’s order “not only changes the definition of marriage, but takes from the states and their citizens the longstanding authority to vote and decide what marriage means,” Slatery said in a prepared statement.

“To the Tennessee citizen who asks, ‘Don’t we get a chance to vote on this in some way?’ the answer from the Supreme Court is a resounding, ‘No, you do not’,” Slatery continued. “For the court to tell all Tennesseans that they have no voice, no right to vote on the issues is disappointing.”

All the same, the attorney general committed his office to “take the necessary steps to implement the decision.” In a press conference Friday afternoon, Slatery advised that government marriage-license issuers should refrain henceforth from discriminating against same-sex couples.

Issue Appears Partisan Now, But Wasn’t Always

The Tennessee Republican and Democratic Parties issued sharply differing reactions to the ruling after it was released Friday.

“With today’s decision we see that love and respect has triumphed and we rejoice knowing that every person has the right to marry the person they love,” TNDP chair Mary Mancini said in a press release statement. “Today is a day that Democrats celebrate with those couples as they build strong families while securing a future for themselves, in Tennessee and across our nation.”

butt scotus2Ryan Haynes, chairman of the Tennessee GOP — which dominates state and congressional elected offices — lamented the court’s invalidation of the apparent will of the people.

“Tennesseans overwhelmingly voted to define marriage as between one man and one woman,” Haynes said. “If a change was to be made, it should have been allowed to play out through the democratic process but, unfortunately, today’s judicial activism short-circuits that ability. While this has long been pushed by the Democrats’ agenda, the issue is far from settled.”

In fact, both chambers of the Tennessee General Assembly were controlled by Democrats when it voted twice on lopsided tallies in favor of altering the state’s constitution to limit legal marriages to “one man and one woman.” Among the co-sponsors of the gay-marriage ban, which won approval in 2004 and 2005, were Craig Fitzhugh of Ripley, the present-day House minority leader, and former Rep. Mike Turner of Old Hickory, who in the past served as House Democratic Caucus chairman.

Mike Turner and Craig FitzhughTwo-term Tennessee Gov. Phil Bredesen, a Democrat who preceded Haslam, supported the same-sex marriage ban when it won ratification before voters in 2006, the same year he won re-election to the state’s highest elected office.

In a statement issued Friday afternoon, Fitzhugh indicatd he’s altered his perspective over the years. While he understands how “emotionally charged” the debate over same-sex marriage has been, the ranking House Democrat said he supports the Supreme Court’s decision.

“I firmly believe that civil marriage is a fundamental right for all people, regardless of race, religion or sexual orientation and that there should be no governmental interference with the bond that two loving people have for each other,” Fitzhugh said. “Today’s Supreme Court decision affirms this founding principle.”

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New: The Power of Congress to Curb the Courts

Original Intent Studies of Robert Welch University

By Don Fotheringham (7-17-2009)

In recent decades there have been many proposals for amending the Constitution in an attempt to overturn federal and Supreme Court decisions. All of these efforts have failed to gain the necessary support. Moreover, the amendment process is not the proper route to correct a problem with perceived judicial abuse of interpretation when the Constitution itself is not at fault.

However, a much more effective, but little know process is immediately at hand. We are referring to the clause found in Article III, Section 2, providentially written as follows: “…the supreme Court shall have appellate Jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.”

It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation, and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.

So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction.(1) This view was confirmed again by Chief Justice John Marshall in 1805(2) and has been affirmed by all Supreme Court justices who have commented on the subject.

The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people through Congress. Lower court cases find their way to the Supreme Court by the appeal process. Cases generating objectionable decisions — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court.

Among landmark cases presumably corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.

A good question arises: If Congress acts to restrain the Supreme Court, what can it do to restrain the federal district courts? For certain, many of the lower courts have exceeded their authority to interpret the law. But control of the two court systems entails two different legal routes:

The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.

Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws. Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws. Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate or ask permission to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.

How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound. A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.

A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”

Significantly, this Concurrent Resolution would accomplish the intended purpose while safely circumventing the desk of the president.

The simplicity of this route, and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.

Okay, that should curb the Court’s passion for new decisions that distort the Constitution, but what about its past decisions? How can Congress nullify the existing immoral burdens imposed by former Supreme Courts? How for example does Congress, if so inclined, reverse Roe v. Wade and Lawrence v. Texas?

There is no instant route. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried. Unfair? Yes, but the second time around the lawyers fighting the abuse of original intent will have a slight advantage, which will include the same files, proven arguments, decent-thinking judges, and local juries. Under these circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts.


1 In Wiscart v. Daushy (1796) Chief Justice Oliver Ellsworth said, “Even [the court’s] appellate jurisdiction is qualified inasmuch as it is given ‘with such exceptions, and under such regulations, as Congress shall make.’ … If Congress has provided no rule to regulate our

proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” Ellsworth’s opinion is especially weighty, as he had been a delegate to the Federal Convention and had served on the very Committee of Detail that had drafted the Exceptions Clause.

2 John Marshall was a delegate to the Virginia convention that ratified the Constitution. During the debates he said, “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature [Congress] may think proper for the interest and liberty of the people.” Later, as Chief Justice of the United States, he reaffirmed that view. In United States v. More (1805) he said, “As the

jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its power must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described.” In Durousseau v. United States (1810) Marshall said, “When the first legislature of the union [Congress] proceeded to carry the third article into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court.”

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