Gay opinion’s theory could be used to ‘knock down’ Tennessee income tax ban

Gay theory in the Obergefell opinion starts a cancer that could overturn other parts of Tennessee law.

Gay theory in the Obergefell opinion starts a cancer that could overturn other parts of Tennessee law.

A state income tax in Tennessee is unconstitutional. But the logic of the federal high court in ruling against marriage could serve interests in Tennessee that are nearly as revolutionary as that of the gay agenda. The Obergefell logic could be used against the state’s prohibition of a tax on wages. The following is an excerpt from an essay that pretends a federal judge is about to “strike down” the state’s pro-life amendment — using Obergefell equal protection theory — and create a way to “strike down” state tax law.

By David Fowler

*** The argument now *** is that Tennessee’s sales-taxed based tax structure is regressive, hurting the poor because they pay a disproportionate share of their overall income in taxes compared to the wealthy. This disproportionality, it is said, is a violation of equal protection.

The income tax advocates want the federal court to order the state to develop a graduated income tax coupled with a reduction in the sales tax. This, they say, would produce an overall tax system that would have each citizen paying approximately an equal percentage of their disposable income in state taxes.

At one time I would have considered the lawsuit a joke, because everyone knows that federal courts cannot make or pass laws, and to implement an income tax and to reduce the sales tax rate would require legislative action. But the U.S. Supreme Court’s decision in Obergefell v. Hodges in June has given the tax-equality folks the judicial precedent they need to press the case.

You may recall that in June the U.S. Supreme Court said that state statutes expressly allowing marriage licenses to be granted only to male and female applicants were effectively “amended” by the court to require that licenses be granted to two people of the same sex.

The Obergefell court disregarded

— Our constitutional amendment defining marriage,

— Article VII, Section 1 of Tennessee’s constitution that says only the state legislature can “prescribe the duties” of our County Clerks, and

— Article II, Sections 1 and 2 of Tennessee’s constitution that embodies the doctrine of the “separation of powers,” which says that only the legislative branch of government can enact new laws and amendments to existing laws,

and said that the U.S. constitution allowed them to “amend” our marriage law to require clerks to issue marriage licenses to two people of the same sex even though the law says the applicants for a license must be a “male and female.”

The same rationale should apply here. The court will say that the equal protection clause of the U.S. constitution must trump the provisions of the state constitution and the federal court must, by judicial order, “enact” or make the legislature enact the new tax plan in order for the constitutional rights to be protected.

Unfortunately, constitutional scholars who oppose an income tax have repeatedly said in private that there will be nothing our state can do. They say the U.S. constitution is the “supreme law,” and a U.S. Supreme Court decision as to what the constitution means is final and cannot be challenged. The state will have to comply. ***

David Fowler is a former state senate and is president of Family Action Coalition of Tennessee.

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