Tennessee County Clerks Should Not Issue Same-Sex Marriage Licenses, Lawyer Advises

David Fowler is a lawyer, a former Tennessee state legislator, the head of the Family Action Council of Tennessee (FACT) – a Focus on the Family-affiliated state group – and a tireless advocate for traditional marriage. He is leading the fight in Tennessee to push back on the conventional wisdom that the Supreme Court’s 2015 same-sex marriage ruling in Obergefell v. Hodges somehow forced a change in Tennessee’s constitution that defines marriage as between one man and one woman. The Daily Citizen has previously reported on his efforts to educate and motivate the public and the legislature on the limits of the Obergefell ruling.

Recently, Fowler made waves for penning a letter to every county clerk in the state, advising them that they should not issue same-sex marriage licenses, because the Tennessee state constitution recognizes only opposite-sex marriage.

While many people will claim that Obergefell changed the laws of all 50 states, including Tennessee, to require same-sex marriage, Fowler disagrees.

“The people of Tennessee made a law in their constitution that says any policy, law or judicial interpretation purporting to define marriage as anything other than a man and a woman is void and unenforceable,” Fowler told a local news affiliate.

“And no court had ever enjoined (i.e., legally excused) a county clerk from complying with this provision in Tennessee’s Constitution governing the issuance by them of marriage licenses,” Fowler explained in a commentary carried on FACT’s website.

Therefore, he argues, county clerks are legally bound to follow the state constitution.

He may be a lonely voice in Tennessee at the moment, but his reasoning is supported by numerous legal scholars who criticized Obergefell’s reasoning just two months after it was decided in June 2015, and by at least two who have specifically looked at Tennessee law at Fowler’s request.

No bandwagons have started up in Tennessee following issuance of the letter. Fowler believes state politicians and county clerks are hesitant to rock the boat. “By and large, I think legislators are afraid we’ll get boycotted like North Carolina if we raise our voice and assert you need to obey the constitution,” he said. “They realize, ‘if I don’t issue a license, I will get sued by a same-sex couple. None of them want to get sued. None of them want their local taxpayers to have to pay for that lawsuit. I understand why they’re doing business as usual.”

The issue will probably have to be determined in the courts, and it’s likely the U.S. Supreme Court will have to face the issue head-on at some point. But Fowler is determined, and he wants Christians to understand that this is winnable, but there will be a cost. He issued this challenge: “We evangelicals must answer this question: Are we willing to use the constitutional tools available to us to oppose this attempt at a nationwide definition of marriage if it costs us friendships and reputation in the eyes of those who think we are nuts, bigots, religious zealots or deluded believers in fairy tales?”

Thank God for committed followers of Christ such as David Fowler who will stand up against the forces of government and culture on our behalf and push back against unrighteousness. Please pray for the success of Fowler’s efforts on behalf of marriage and for many others to join him in the battle.