“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here."

-Obergefell v. Hodges, United States Supreme Court

An Introduction to the Lawsuit

When the United States Supreme Court ruled on the constitutionality of statutes in Kentucky, Michigan, Ohio that authorized the issuance of marriage licenses only to a man and woman, it acknowledged three fundamental principles. Each is important to a proper understanding of the lawsuit that a group of ministers has filed against Governor Bill Lee, his Commissioner of Health, and Tennessee’s Attorney General and Reporter. The lawsuit is directed at the way their reinterpretation of Tennessee’s statutes governing the creation of marriages by state licensure has negatively affected their constitutional rights and negatively impacts their witness regarding the transcendent and sacred nature of marriage.

Supreme Court Principles Overlooked

Marriage Predates Government

First, the U.S. Supreme Court acknowledged “that marriage is a right ‘older than the Bill of Rights.’” And the Court has “described marriage this way: ‘Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” 

The ministers in this lawsuit agree: Marriage is a pre-political institution. And it comes within the very nature of their ministry. Marriage is a relationship that the Holy Bible depicts as reflecting the relationship between the Lord Jesus Christ and those whom the Holy Spirit has joined to Him, called His body, often also called His Bride. 

But, only a marriage between a man and woman can depict the union between Christ and His body because that kind of marriage reflects not mere union and not mere multiplicity, but a union of diverse beings, a complementarity, that gives rise to a form of unity and diversity, not mere multiplicity. Thus, this understanding of how God relates to His people and how it ties into the fact that we are created biologically as male and female “promotes a way of life, not causes” or creates one. 

But, the unilateral reinterpretation of the licensing laws by former Governor Haslam that Governor Lee has decided to stick with requires ministers to sign government documents by which they affirm that the marriage they solemnized is one in which the biological sex of the couple was irrelevant. 

These ministers cannot make this affirmation in good conscience before the members of their congregation or in the eyes of a watching world. 

In the words of Obergefell, they can “teach the principles that are so fulfilling and so central to their lives and faiths, and to . . . the family structure they have long revered,” but the Governor’s decision to follow Governor Haslam’s unilateral reinterpretation of the law means they cannot holistically live it out what they teach in the context of their calling, their ministry.

They could choose not to provide the couples to whom they minster a marriage that the state will recognize as valid. But if they want to provide the ministry that a couple asks for and maybe even expects from them then they face a conflict between how they conduct themselves as ministers and what they teach regarding the family structure they hold in reverence as divinely constituted and commissioned.

The way the Governor is administering the law, following Governor Haslam’s unilateral reinterpretation of it, requires these ministers to make a Hobson’s choice in regard to their ministry, a choice the First Amendment prohibits. Moreover, this new interpretation of marriage in the law has now injected an issue into their ministry and their relationship with a couple to be wed that did not exist when the law and God’s definition of marriage were the same.


Marriage Can Still Be Considered Sacred

Second, the Obergefell Court acknowledged, “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm.” 

But the Governor’s decision to follow Governor Haslam’s unilateral reinterpretation of Tennessee’s law cuts only one way—toward those who believe the complementarity of the two biological sexes is irrelevant to marriage—to the detriment of those, like these ministers, who seek to “live by their religions.” 

For example, those who consider marriage only from a secular viewpoint can solemnize a marriage and the Governor will extend to it legal recognition and protection. But that same treatment, privilege, and opportunity is not extended to those who view marriage as sacred and its meaning fixed by God and immutable. They, like these ministers, must sign a form issued by the Governor’s Commissioner of Health that has them clearly denying what they believe is necessary for a marriage to exist. If they don’t, the governor will not treat the marriage they solemnize in the same way as those solemnized by ministers willing to sign the documents.

A Sacred Understanding of Marriage Is Not Unconstitutional

Third, the Court acknowledged, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” 

What Does The Lawsuit Do?

The lawsuit alleges that the unilateral reinterpretation of Tennessee’s statutes and Constitutional provisions regulating marriage licensing by former Governor Bill Haslam, in which the state’s Attorney General was complicit, and that Governor Lee has chosen to follow, violates the ministers’ rights under United States Constitution in the following three distinct ways: 

How is the Right to Freedom of Speech Violated?

In Wooley v. Maynard, 430 U.S. 705 (1977), the United States Supreme Court said, “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” 430 U.S. at 714. “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’" Board of Education v. Barnette, 319 U. S. 624, 637 (1943).

In the Wooley decision, the Supreme Court said it was “faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” 430 U.S. at 714. The Court said, “We hold that the State may not do so.” The specific issue was the state motto imprinted on state issued license plates, “Live Free or Die.”

In finding the First Amendment violated by the law, the Court said:
The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable. 430 U.S. at 715.

Although, in the present situation, the message and means of communication differ from Wooley, the constitutional principle is the same. The First Amendment prevents state officials from compelling individuals to endorse or communicate any message or ideological viewpoint contrary to that individual’s personal beliefs. 

Christian ministers are compelled by state law as interpreted and enforced by the Defendants to sign two different forms issued by the Defendants in order to honor the request of their parishioners to solemnize their marriage so that it will be valid in the eyes of the law. The minister’s signature is an endorsement. By signing these required forms, the minister is affirming the validity of the marriage according to state law. Marriage without a state license is not allowed.

But marriage, according to the unilateral reinterpretation of state law by former Governor Haslam and now followed by Governor Lee and the other two Defendants, is no longer defined in terms of one of the parties being a male and the other being a female. That presents the First Amendment problem because, for the ministers, on the basis of their religious beliefs, nothing called a marriage can exist unless it is defined exclusively in terms of one male and one female.

It doesn’t matter that the couple whose marriage the minister solemnizes is, in fact, a male and female; the minister is not being asked by the state to affirm the biological sex of the parties to the marriage, but to affirm the state’s understanding of what constitutes a marriage.  The minister is compelled to participate in conveying a message contrary to the minister’s right to be free from such compelled speech, if he honors a couple’s request to officiate their marriage under Tennessee law.

The license and Certificate of Marriage are based on the Defendants’ understanding of what constitutes a valid marriage in Tennessee, and it is on the basis of that understanding that the documents are issued. The Certificate of Marriage signed by ministers is very clear in its wording that biological sex is not relevant to the marriage the ministers have solemnized. The minister’s endorsement on this document will convey a message the minister would, without state compulsion, choose not to convey.
While the state may have a valid interest in having a marriage solemnized by certain designated types of persons in order to ensure that a couple has positively declared their intent to enter into a marital relationship, the same must be said here as in Wooley: “[T]he State's countervailing interest is [not] sufficiently compelling to justify requiring” the ministers to affirm the governor’s new definition of marriage.  430 U.S. at 716.

Consequently, the Defendants’ reinterpretation of the law results in a violation of the ministers’ First Amendment rights in regard to speech.

How is the Free Exercise Clause Violated?

Governor Lee’s decision to follow former Governor Bill Haslam’s unilateral reinterpretation of the state’s statutes and constitution regarding licensed marriage is infringing on the duties and functions that ministers are expected to carry out on behalf of couples asking them to solemnize their marriage and is impinging on the ministerial relationship they otherwise would have had with couples desiring to marry.

Appreciation of the problem begins with consideration of what the United States Supreme Court said in 2018 in regard to the intersection of religious beliefs, there a cake baker, and sex-sex couples:
The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S.Ct. 1719, 1723 (2018)

While the lawsuit by the ministers does not involve a statute protecting same-sex couples from discrimination, it does involve the “proper reconciliation” of the rights same sex couples have in regard to licensed marriages and the right of these ministers “to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.” Id.

The Free Exercise issue involved in this case is like one that went to the U.S. Supreme Court out of Chattanooga, Tennessee, involving a minister named Paul McDaniel. In holding that Tennessee’s law regarding the intersection of a minister’s religious functions and public service was unconstitutional, the Court said “the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions, or, in other words, to be a minister of the type McDaniel was found to be [i.e, “Baptist”].” McDaniel v. Paty, 435 U.S. 618, 626 (1978).  These are the same rights that belong to the ministers in this case, and officiating marriages is undoubtedly within the nature of a religious function.

The constitutional problem arises out of the fact that Tennessee, because of the status of ministers in the community, has carried over from the statutes of North Carolina a religious policy that authorizes Christian ministers to serve as official agents of the state for the purpose of carrying out the state’s policy regarding the formalization of licensed marriages, called “solemnization.”

However, because Governor Lee has chosen to follow former Governor Bill Haslam’s unilateral reinterpret of marriage in Tennessee’s statutes and constitution to exclude biological sex as a pre-condition for a marriage license, it has reached the point that these ministers can no longer “simultaneously” perform all the duties customarily  associated with marriage (and in some cases, contractually required) and those required of a minister-qualified marriage officiant “because the State has conditioned the exercise of one on the surrender of the other.” McDaniel,  435 U.S. at 626. 

Ministers remain “qualified” to solemnize a lawful marriage for a couple in their church, but only if they give up the pastoral aspect of their ministry related to communicating by word and deed the sacred and transcendent aspects of marriage. That’s because the Defendants’ require that the ministers sign a form affirming, and by its language showing, that the licensed marriage over which they have presided was defined only by the number of parties to that marriage. By signing the form, ministers of the gospel are participants in the State’s marriage scheme. Defendants require that ministers sign forms to create lawful marriages in Tennessee, but ministers cannot in good conscience endorse the view that the biological sex of the parties is irrelevant to marriages that God ordains. The First Amendment prevents Defendants from forcing ministers to choose between fidelity to their faith or satisfying the obligations of law.

Moreover, because these ministers continue to be conscripted by the Defendants for the purpose of carrying out the genderless redefinition of marriage created by Governor Haslam and still insisted on by Governor Lee, the Defendants have injected a new issue into the ministerial relationship these ministers have with an engaged couple—the complete de-sacralizing and attendant secularizing of marriage in the eyes of the law. Fidelity to their ministerial obligations now requires these ministers to explain caveats they must write on the state’s forms if they are to sign them, which caveats could impact the validity of the marriage, or decline the couple’s request to solemnize their marriage in the eyes of the law.

In the words of the Supreme Court, the Defendants either “did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom.” Church of the Lukumi Bablu Aye, Inc, v. Hialeah,  508 U.S. 520, 524 (1993).

How is the Establishment Clause Violated?

The Establishment Clause of the First Amendment to the United States Constitution provides a safeguard for religious liberty ensuring that civil governments do not entangle themselves in religious doctrine, belief, and teaching. 

In Christian doctrine, marriage is a sacred relationship which Scripture uses to picture the unity within diversity of the Triune God and to describe Christ’s relationship to the Church. Marriage is, therefore, a focal point of Christian doctrine, belief, and practice. The Establishment Clause precludes any excessive entanglement between church and state in order to prevent political corruption of religious teaching.

The continued conscription of ministers into the execution of the state’s policy of recognizing as valid only marriages that comport with the unilateral reinterpretation of marriage under state law made by former Governor Bill Haslam has significant ramifications. 
Few realize that Tennessee’s marriage licensing statutes were passed and signed into law for the purpose of establishing as valid only those marriages they knew conformed to certain Christian beliefs acceptable within the state, and, as will be demonstrated, the entanglement between the state and the church in regard to marriage continues to this day. 

According to the Tennessee Supreme Court, the marriage statutes of Tennessee carried forward the stated purpose of the marriage statutes of North Carolina, which were adopted by Tennessee’s first General Assembly. That purpose, according to the statutes and the Tennessee Supreme Court was “[f]or preventing clandestine and unlawful marriages.” Bashaw v. State, 9 Tenn. 177 (1829); Smith v. Bank, 115 Tenn. 12 (1905).
What were “clandestine and unlawful marriages?” As the next two paragraphs will demonstrate, these statutes were intended to discriminate between religious doctrines in order to prevent certain ministers from officiating marriages. In other words, the entire marriage licensing scheme Tennessee adopted was originally intended to establish an official State religious test for the validity of marriage and thereby discriminate against certain ministers!

According to the Tennessee Supreme Court, under the marriage statutes, only a “clergyman of the church of England, and for want of such, any lawful magistrate” could solemnize a marriage, but it could only be done upon the issuance of a license or conformity to the process “prescribed by the book of common prayer.” In other words, only if there was no church of England clergyman within the local parish could a magistrate solemnize a marriage!  No other clergyman could solemnize a marriage.
Restricting the rite of marriage to clergy from the Church of England created problems because “Presbyterian or dissenting clergy, conceiving themselves not included in the restriction of ministers mentioned in that act, have joined persons together in holy matrimony.” Bashaw, 9 Tenn. at 182.  So, the law was amended, but only to allow Presbyterian ministers to join Anglican priests in solemnizing marriages upon certain conditions.

As denominational diversity within Christianity continued to expand, the law was again amended to include “all regular ministers of the gospel of every denomination, having the care of souls, and all justices of the peace, to solemnize the rites of matrimony according to the rites and ceremonies of their respective churches.”  Bashaw, 9 Tenn. at 182-83.  But, even as amended, the connection between the marriage statutes and the establishment of preference for a certain religious belief supporting marriage remained clear. 
Consequently, the Bashaw Court said one of the requisites for a valid marriage in Tennessee was “[t]he solemnization of the marriage performed by a person duly qualified, that is, by a regular minister of the gospel having the care of souls, or a justice of the peace duly qualified.”
Thus, Tennessee, throughout the State’s history, chose to use its regulation of marriage as a means to entangle itself in religious matters and to establish the State’s preference for certain religious doctrines over others for the purpose of carrying out its marriage policy. The entanglement between church and state is highlighted by the state’s marriage statutes defining “regular ministers, preachers, pastors, . . . and other spiritual leaders of every religious belief” as those “having the care of souls” and they must have been “ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization” whose “customs must provide for such ordination or designation by a considered, deliberate, and responsible act.”

So long as the State’s definition of marriage is consistent with the doctrine and teachings of these religious communities then there is, perhaps, little perceived harm in conscripting the services of a minister, preacher, or pastor as a state-ordained official to carry out the state’s marriage policy. But when, as now, state officials redefine marriage in a way that is contrary to and inimical to Christian doctrine, it becomes impossible for ministers of the gospel of Christ to participate as state-ordained officials without violating their religious doctrine, belief, and teachings.
In sum, when we look to the origins of Tennessee’s statutes on marriage, they did not have “a secular purpose” from the beginning, and they have fostered and continue to foster “an excessive government entanglement with religion,” both of which factor into the whether there is an established of religion under the First Amendment. See American Legion v. American Humanist Association, 588 U.S. ___, No. 17-1717 (2019) quoting Lemon v. Kurtz- man, 403 U. S. 602 (1971).

The plaintiff ministers believe this entanglement, which existed from the origins of Tennessee’s marriage statutes, will have a very deleterious effect Christian doctrine, belief, and teaching regarding marriage and its relationship to the gospel.  For example, in the recent American Legion decision, the Court said that the Maryland-National Capital Park and Planning Commission’s continued maintenance of the Bladensburg Cross was not unconstitutional, but the reasoning is what here concerns the ministers:
The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But, there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular . . . . The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. . . . So an image that began as an expression of faith was transformed.
So, as with the transformation of the message conveyed by the Bladensburg Cross when the message being conveyed to the people by a civil law says biological sex is irrelevant to marriage and that marriage is something other than the union of one man and one woman, marriage will lose the last vestiges of its sacred and transcendent nature and importance. In fact, this was exactly the reasoning already employed by five justices on the United Supreme Court in Obergefell v. Hodges:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that . . . becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.

These five justices have effectively said that marriage has been transformed in their minds in the same way the Bladensburg cross was described as being transformed.

In other words, these Christian minsters are concerned that the state’s continued use of Christian ministers to officiate and ordain marriages, as redefined, will dilute and distort Christian teaching regarding marriage. Marriage will increasingly be seen as a purely secular institution that can mean whatever a majority of the legislature says it means for the purpose of distributing a certain set of government benefits. The situation in Obergefell is now being reversed; the “necessary consequence” of conscripting ministers to carry out “enacted law and policy” is “to put the imprimatur of [Christianity] itself on” a definition of marriage that is contrary to Christian doctrine.

When ministers are required to carry out for the state a law that denies what God says is true about the complementarity of men and women and about its relationship to marriage, the ministers believe they and the church at large are effectively conveying their agreement with the civil law’s message about God, men and women, and marriage. They and the church are putting their imprimatur on that message, and, from an Establishment Clause perspective, the government is seeking to put the imprimatur of these ministers and the church on the state’s message, as the state has done since the licensing statutes were first enacted.

Questions You May Have and Their Answers:

Question 1

Isn’t Governor Lee just doing what Obergefell required? What did he do “wrong”?

Short Answer: Actually, the Supreme Court’s judgment in Obergefell did not require Tennessee’s Governor to do anything with respect to Tennessee’s marriage licensing law, and that’s not just one person’s opinion. The state’s attorney general and the federal district court both said, after the Obergefell opinion, that the lawsuit against then-governor Bill Haslam had nothing to do with Tennessee’s constitution or statutes as they relate to the licensing of marriages. 


Expand Answer

After the judgment in Obergefell, the case filed by same-sex couples who had married in other states against Governor Haslam was returned to the district court. The court had to decide how the Supreme Court’s opinion and judgment applied to that lawsuit.
That’s when the Tennessee attorney general’s office filed a brief with the federal court saying the judge could not enter a final judgment providing for “a whole invalidation of Tenn. Const. art. 11, § 18 and Tenn. Code Ann. § 36-3-113.” An annotated copy of that pleading is at this link.

The district court judge agreed! In fact, the federal District Court Judge Aletha Traugher said that enjoining enforcement of those laws in their totality would require her to “rewrite the scope of the lawsuit.” An annotated copy of her opinion is at this link. 

Here is what the provisions of Tennessee law not enjoined (i.e. they are still in force) say in regard to how the licensing statutes are to be construed:

Tennessee Constitution, Article XI, Section 18: “Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee.” 

Tenn. Code Ann. § 36-3-113 (c): “Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.”

The District Court’s Final Judgment and Permanent Injunction is at this link.  It is in exactly the same format as it was given to Governor Lee in a meeting with the ministers’ counsel in October 2019.  He read it at that time.

You will see that the notations on it explained to Governor Lee the limited nature of the federal judge’s final decision.  

So, with that as background, what did Governor Lee do “wrong?” 

Despite the information he was given about the limited scope of the judgment applicable to Tennessee, the governor decided he would continue to do what Governor Haslam had done.
Even though the federal court’s order did not apply to those provisions, Governor Haslam took it upon himself to reinterpret the law that requires applicants for a marriage to be a “male and female.” He effectively interpreted those words right out of the statute when only the legislature can amend words out of a statute and only courts can enter a judgment holding that unconstitutional language in a statute can be severed from that statute. 

In other words, Governor Haslam unilaterally reinterpreted the plain language of the law, and in doing so, he violated the separation of powers provision in Tennessee’s Constitution, Article II, Section III, to the detriment of these ministers.

But worse, yet, he violated the unenjoined provisions of Tennessee’s Constitution. His unilateral reinterpretation of the licensing laws recognized a form of marriage that the Tennessee Constitution says Tennessee’s government cannot license. 

Until a court actually rules that these provisions of the Tennessee Constitution violate the U.S. Constitution, the governor is supposed to uphold his oath of office. His oath requires him to uphold boththe Tennessee Constitution and the U.S. Constitution until a court directs him otherwise.

A governor can stop enforcing a law that he thinks is unconstitutional, but he can’t reinterpret it to what he thinks is right when the language of the existing law is clear and unambiguous. That is not the job of the executive branch under Tennessee’s Constitution. 

So, yes, Governor Lee did something wrong—he decided to keep doing what Governor Haslam had done wrong—and it interferes with the ministry of those who are suing him.

Question 2

Couldn’t the ministers have resolved this another way?

Short Answer: Actually, they tried in several different ways and at different times. 


Expand Answer

After the governor was elected, counsel for the ministers met on more than one occasion with lawyers in the governor’s inner circle to explain what the judgment and opinion of the United States Supreme Court in Obergefell had and had not done and what the federal district court had done after the Obergefell judgment and decision had been returned to it. They were told that what the state was doing was unconstitutional. They were provided notebooks with an extensive number of documents to substantiate what was said. Among those documents were the Attorney General’s brief filed in the Federal District Court after the Obergefell decision and the Court’s opinion and final judgment entered after Obergefell. Links to them are under the expanded answer to Question 1.

Eventually, in October 2019, counsel met with Governor Lee personally and again provided court documents supporting their concerns about how the law was being interpreted and administered. The governor was given and read an annotated copy of the federal district court’s Final Judgment and Permanent Injunction, which showed what the ruling did and did not do. What was given to him is at this link. 

Governor Lee was also told that the ministers would file a Petition for a Declaratory Order seeking to have his Commissioner of Health clear up what the law was and on what authority the state’s Certificate of Marriage had been changed by Governor Haslam.  The Certificate prior to Obergefell is at this link and at this link you can see the changes that Governor Haslam started making to the Certificate. It was a legal means by which the governor could have decided to stop issuing the problematic Certificate that minsters must sign.

At this link is the response from the Governor’s Commissioner to the Petition. The Governor chose not to stop doing what he was doing and advised the ministers to proceed to court.

But, in addition to this, prior to that meeting with the governor and filing of the Petition, in 2016, two different groups of ministers and citizens sued two different county clerks, asking that the state courts determine whether the clerk still had authority under Tennessee law to issue marriage licenses after the Obergefell ruling.  Legislative leadership at the time agreed this was the best approach because they were entitled to presume the licensing laws were constitutional until a court held them unenforceable. The legislature even passed a resolution at the time stating that the Supreme Court could not “order or direct a state legislative body to affirmatively amend or replace a state statute.” 

The governor was advised of the lawsuits prior to his election and, after his election, his advisors were informed of the lawsuits while they were still pending and why they had been filed—that what was going on was unconstitutional.
Recently, the cases were dismissed on the ground that the ministers and citizens had no claim or legal right (called standing) to have this question answered.
In other words, this lawsuit is no surprise to Governor Lee, and he had an opportunity to avoid it had he responded differently to the Petition for Declaratory Order.


Question 3

Are the ministers trying to stop same-sex couples from getting married?

Short Answer: No. The lawsuit focuses strictly on how the law, as interpreted since Obergefell, relates to their ministry and the First Amendment.

Expand Answer

The lawsuit is about the right of these minister to fulfill the whole of their ministerial commitments and obligations consistent with the First Amendment and about the degree to which the governor’s reinterpretation of the licensing laws and the use of ministers to help carry out those laws results in an excessive entanglement by the government in matters of religion. 

Question 4

Is it really Governor Lee’s “fault” that ministers have to sign the documents they object to? Isn’t that what the law itself requires?

Short Answer: “Fault” is not a word the ministers would use, but did the governor take it upon himself to reinterpret one law so as to exclude any form of marriage defined in terms of the two biological sexes but refuse to reinterpret the law that applies to ministers? Yes.  


Expand Answer

The licensing law governing marriages that the state will recognize as legal says, “No county clerk or deputy clerk shall issue a marriage license until the applicants make an application in writing, stating the names, ages, addresses and social security numbers of both the proposed male and female contracting parties . . .”

The legislature has not amended the law to remove the “male and female” requirement in the law and no court has ever held that those words can be severed from the law and the law then upheld without those words.

Yet, the governor, who is not a judge nor equivalent to the legislature, decided this law should be interpreted contrary to its plain language as if the words “male and female” either don’t exist anymore or mean something else entirely.

Then, the governor decided to continue issuing a Certificate of Marriage that Governor Haslam had reworded that says biological sex is irrelevant to marriage. The law does require ministers to sign this form.

But here is the point the ministers are trying to make: If a governor can unilaterally choose to ignore or reinterpret the plain language of one statute in an effort to give same sex couples an opportunity to marry, then why cannot he choose to unilaterally ignore or reinterpret the language in the law that now infringes on the rights of ministers?  

The governor cannot say he must apply the marriage licensing laws as written when they apply to certain people (ministers) and then say he is free to apply the marriage licenses laws contrary to the way they are written when it comes to other people (same sex couples). If I government has the power to reinterpret and effectively re-write laws to make them constitutional in light of a Supreme Court ruling, he should do so for the sake of all who are implicated by or affected by that decision; he can’t pick and choose when he can use this power to “conform” the law to what the U.S. Constitution, in all its parts, requires.

The ministers filed a Petition with the Commissioner of Health appointed by Governor Lee giving him an opportunity to discontinue administering the marriage laws the way Governor Haslam had unilaterally decided to interpret them, and his Commissioner said no. The letter saying no is this link. 

Question 5

Why are the ministers just now filing a lawsuit when the U.S. Supreme Court’s decision about marriage was in 2015?

Short Answer: Litigation over constitutional rights is sometimes a slow process. It takes a long time to digest and fully appreciate the impact of a Supreme Court decision that purports to change the millennial old understanding of marriage in the West. That process was complicated by the fact that the analysis employed by the Court to justify its holdings and judgment was ambiguous. For example, attorneys have been trying to figure out whether the Court’s judgment was based on a “liberty” right in the Due Process Clause of the 14th Amendment, which would make marriage a matter of federal law and policy. Or was the judgment based on Equal Protection Clause, which would mean that marriage is still a matter of state law and policy.  And, if it was based on both, then in what way?

Expand Answer

Moreover, not all ministers were confronted with the change in the Certificate of Marriage immediately after the ruling in Obergefell. Being confronted with the change depended on when a minister was next asked to solemnize a marriage, and one of the county clerks in one of the minister’s home county only recently substituted the new form for the old one.

In addition, it was hoped that the two other suits that were filed would make this suit unnecessary. It didn’t become apparent until mid-2019 that the state courts were probably not going to address the legal issues in those lawsuits. That is when the meeting with the governor took place and the Petition for a Declaratory Order was filed with the Department.
Lastly, it was hoped that once Governor Lee assumed office that he would review the Petition they filed in accordance with the Uniform Administrative Procedures Act that called into question the constitutionality of Governor Haslam’s unilateral reinterpretation of the marriage laws.

Since the denial of the Petition by the Department in early 2020, the development of the present lawsuit began in earnest.

Question 6

Can’t the Legislature Fix This by Simply Changing the Applicable Statutes?

Short Answer: No. The reason the legislature can’t “fix” the law is the same as one of the reasons the governor cannot not “fix” the law.  

Expand Answer

The provision in the Tennessee Constitution prohibiting the licensure of any form of marriage other than male and female is still in force, and legislators, like the governor, are supposed to abide by it according to their oath of office until such time as that provision is repealed by the people or a court holds that it violates the U.S. Constitution. But the only way the state’s constitutional prohibition on licensing marriages defined without regard to biologicalsex would be unconstitutional is if the U.S. Constitution now requires states to license marriages. But the Obergefell holding did not go that far. It only said that if a state does license marriages, it must provide a way for a same-sex couple to marry. No state official can just ignore the plain language of the Constitution and be faithful to his or her oath of office.

Question 7

Is there a legislative solution?

Short Answer: The answer depends on what one sees as the problem. If the problem is that the law is contrary to what God says is the truth about the two biological sexes, human sexuality, and the nature of marriage and that the law, therefore, teaches people something contrary to the truth about marriage, the answer is one thing. It is not a complicated answer, but it will demand much courage politically-speaking. If the problem is simply that ministers are being used to prop up and lend their credibility to a law that is contrary to these truths—if civil law can be divorced from God’s truth on these subjects—and that is okay for the civil law to teach what is contrary to what God says is true about marriage, then there are two simple answers.

Expand Answer

The Two Easy Answers and What Problems They Solve

The first easy answer is to remove ministers from the law. Of course, this doesn’t change the message that the law teaches, but it does relieve ministers from having to sign a form that affirms something contrary to what they believe.

The second, which would be of interest to politicians not wantingto irritate ministers who want to solemnize marriages and couples wanting their ministers to solemnize their marriages, is to do what Alabama did. Alabama passed a law that not allows any two adults to sign and file a document that says they have declared themselves to be married. Of course, this doesn’t change the message that the law teaches either.

But this solution is worse than the first. It says that marriage is whatever any two people think it is, and this paves the way for the next constitutional question: Why can’t marriage be whatever any number of people more than two says it is? The politician who votes for this second solution can have no good logical answer for two reasons.

The first is that he or she has already conceded that the meaning and definition of marriage is really a private matter that the law simply sanctions. It will be too late in the day to say marriage is limited to two people because anything else is contrary to the Word of God; the legislator has already conceded that God’s Word is irrelevant, and it is hypocritical to try dragging it in now.

The second would be for the politician to point, not to God’s Word, but to history, to the point that two people is the way we’ve always done it. That is not a good answer because the politician will have already given up history as a rationale for a law. History never said any two people regardless of biological sex could marry either until now. So, there is no logical reason history needs to be a barrier to marriage between and among more than two people.

This option really privatizes marriage, but it does so because state law calls it a marriage. When the state “creates” this kind of marriage as a matter of policy, it will be virtually impossible for the Attorney General to defend a lawsuit arguing that there is a right to polygamous marriage.

The Right Solution and the Problems It Solves

The only solution that is consistent with what God’s Word says about the two biological sexes, human sexuality, and the nature and meaning of marriage and is not clearly in violation of either the U.S. or Tennessee Constitution is the Marital Contract at Common Law Recording Act (“MCCLRA”). It is based on the fact that the common law, which precedes all positive law and was preserved to the people by the Ninth Amendment, says marriage is, namely, the commitment of one man and one woman to each other as husband and wife. But, unlike the other approaches, the legislature does not enact any law to “create” it. MCCLRA simply provides a mechanism by which a married couple can make a public declaration of the fact that they are already married under the common law.

This solution allows ministers to solemnize marriageswithout legal issues begin injected into his or her ministry to couples desiring to marry and within their ministry at large. They are no longer in the position of being a minister both of God and of the state or having to choose between the two. This solution does not violate Obergefell because the state is not creating any marriage by virtue of its law or giving permission to anyone to marry. The law enacted by the state does not, therefore, deny anyone the right to marry. For this same reason, this solution is consistent withthe Tennessee Constitution, because it is consistent with the “historical institution and legal contract solemnizing the relationship between one (1) man and one (1) woman.” TENN. CONSTITUTION, art. XI, sec. 18.

Now is the time for the ministers of God and the people whom God has joined to Himself to discern the difference between the holy and the profane and to live out that difference, regardless of personal, political, or ecclesiastical cost. After all, the grace that we have received, while free, did not come to us cheaply.

Click here for more information about this legislation.

Click here to find out why this legislation does not violate the U.S. Constitution or the holdings in Obergefell v. Hodges.

Click here for scholarly opinions related to this legislation and the legal issues left open by the decision in Obergefell v. Hodges.

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