An authority on the lesser magistrate doctrine is Matt Trewhella at lessermagistrate.com, from which this image is taken.
By David Tulis
Christians and people of religious interest Monday exulted in a defense by the federal high court of Hobby Lobby and the Green family, spared an Obamacare rule that would have forced them to pay for abortifacients.
But in an opinion overturning the federal Defense of Marriage Act, the court created a yelping in the districts among judges who are acting to overturn marriage in many states — marriage protection amendments to constitutions, and marriage statutes recognizing that union as between one man and one woman only.
Next year it will take up one or several of these virtually unanimous legal actions seeking to nullify marriage law, remove it from state authority, and impose a national egalitarian standard.
Tennesseans face chaos if the high court pretends to rule against marriage in the 50 states and pretends to redefine it in favor of gay theory. If the worst happens next year and the high court rules for the shrieking district and appellate court judges favoring a gay renewal of the creational marital institution inherited from Adam, residents of the state will face a neutron bomb explosion. In that nuclear detonation, cities and bridges remain standing, but all life is destroyed by lethal radiation. The forms remain, but the life is gone. This adoring view of the high court’s prowess and authority would have the effect of wrecking every standard for marriage in the U.S. while not actually erasing existing laws.
Such a situation would upend life in Tennessee. But only, let me suggest, in the appearances. And only if we listen to that influential guild, the lawyers. Under their tutelage, Tennessee would pursue a great error. Namely, that a high court opinion in fact nullifies and makes a dead letter our state’s constitution and statutes. A ruling affecting some other state or gaggle of states will be understood to replace Tennessee law. Opinion from a court replaces law enacted by the representatives of the people of Tennessee. Words of analysis replace words of law, in other words. Thus, the lawyers will dolefully tell us, we have no option but to obey. To kneel.
Doctrine of lesser magistrate
Pretend for a moment that Hamilton County’s clerk, Bill Knowles, is not a man of principle and honor, willing to stand against the queer tide as its reaches peak shares.
Lawyers would be in full accord with Mr. Knowles if he were to “abide” by the high court’s “ruling” and begin marrying self-described gay couples. Reluctantly, they would approve of his compliance, saying he would have no choice but to go against his first principles as a Christian and an elected officer. For lawyers — who have come to infest legislatures despite the doctrine of separation of powers — a ruling from the federal supreme court is law. It deletes any constitutional provision or statute that contradicts the nine justices’ opinion.
Public support for honorable refusal
I pray that God will fortify our county clerk, and those elsewhere, especially as in other states U.S. district judges ordain an end to marriage as we know it.
If Bill Knowles or any successor in office decides to ignore his oath of office and Tennessee law, the people have recourse. The first is to appeal to Mr. Knowles to ignore the high court and obey his oath of office. The appeal would evoke the law of God as declaring marriage as between one man and one woman. It would bid Mr. Knowles’ to stand on a law of creation and upon the laws he swears to uphold.
The people’s antidote if clerk caves: “Relators”
But what if he caves? What if the clerk of Hamilton County gives in to outside pressure, and the clamor of that first gay couple waiting gleefully at his clerks’ counter?
The people are the last resort for holding a malfeasor in local public office to account. Tennessee law gives authority to the attorney general and reporter, district attorneys general and city attorneys power to prosecute an official for a crime in office.
8-47-110. Petition in name of state — Filing by relators.
The petition or complaint shall be in the name of the state and may be filed upon the relation of the attorney general and reporter, or the district attorney general for the state, or the county attorney in the case of county officers, and of the city attorney, or the district attorney general, in the case of municipal officers; and in all cases it may be filed, without the concurrence of any of such officers, upon the relation of ten (10) or more citizens and freeholders of the state, county, or city, as the case may be, upon their giving the usual security for costs.
You my reader are a citizen of the state. You reside in Hamilton County. The freeholder requirement of this statute troubles me because I suspect no one is a freeholder anymore. No one holds land in the free, as commercial government in city and county have put all titles under shadow and lien. Possibly, if a clerk resists a citizen prosecution in court, he can argue the group of 10 has not meet the freeholder description.
Still, 10 “citizens and freeholders” of the state, county or city have authority to prosecute a complaint against a county clerk who violates his oath of office in granting two men a marriage license. The people also have further grounds. The perjury statute comes into play for any Tennessee officeholder who declares two men to be married, as this is a lie and prevarication, and a clerk who is a Christian who swears the oath of office is liable to prosecution for perjury for declaring at law two dudes husband and wife.
It gets better.
What do common people know about lawsuits? Very little. Under this law, they get help. The statute requires the attorney general “to aid and assist” an effort by the 10 citizens to prosecute the county clerk. You and your friends, as God in His providence ordains it, are called “relators.” You represent the state itself — the very state of Tennessee, the corporation. In your relating the state’s grievance against the unwilling magistrate, you file a “petition for the writ of ouster.” If the attorney general refuses, he can be the object of another remedy at common law, a petition for writ of mandamus. If granted, mandamus requires him to act pursuant to his official capacity, though mandamus does not deprive him of discretion.
Which court?
A citizen prosecution of an office-holding malefactor may take place in circuit, chancery or criminal court of the county. My favorite would be chancery, whose interests are equity and the enforcement of contract.
A public official holds his office under covenant. The scriptures would say that if he is a magistrate bearing to some extent the sword, he is an officer under God, just as a church deacon or elder is under God, but in a separate jurisdiction. A covenant theologically, contract legally.
A county clerk who turns his back on his oath and the state’s honorable and good laws is violating his oath before God. Also, he is spurning the interest of the public whose eligible members elected him. If he complies with a court opinion, he is being undemocratic and sharing in an alien absolutism.
He is violating the clear charge under statute and under the state constitution to permit and record marriages only. If he approves and records unions other than marriage as marriage, he is to be held liable for a tort against the people. Chancery would not consider a criminal charge against him, but civil only. The man is tossed from office as unfit.
— David Tulis hosts Nooganomics.com at Hot News Talk Radio 910 1190 and 1240 from 1 to 3 p.m. weekdays, covering local economy and free markets here and beyond.
Source: Tennessee Code Annotated. See also 8-47-111. Assistance to prosecution by relators.
It is the duty of the attorney general and reporter, upon request of relator citizens and freeholders, to aid and assist in the prosecution of such proceedings against state officers, and of district attorneys general and county attorneys, upon like request, to aid and assist in the prosecution of such proceedings against county officers, and of city attorneys or the district attorneys general for the state, upon like request, to aid and assist in the prosecution of such proceedings against municipal officers other than themselves.
