FRANKLIN, Tenn. — Eleven Christian ministers from across the state of Tennessee, along with Tennessee Independent Baptists for Religious Liberty, Inc., filed on Nov. 19 a Petition for Declaratory Order with the Tennessee Department of Health and Dr. Lisa Piercey, commissioner of health, in regard to the Certificate of Marriage issued by the department. Ministers must sign the certificate if they solemnize a licensed marriage in Tennessee.
“The state’s definition of marriage implicates the civil rights of the ministers in regard to the liberty of conscience guaranteed to them under the Tennessee Constitution and in regard to the U.S. Constitution’s First Amendment promise not to prohibit the free exercise of religion and its prohibition on government-compelled speech,” noted David Fowler, general counsel for the Family Action Council of Tennessee’s Constitutional Government Defense Fund, which represents the petitioners.
Fowler said that the state has effectively conscripted ministers into administering the state’s civil law policy in regard to a licensed form of marriage and, because the state does not allow anything but “licensed marriages,” ministers must sign the department’s Certificate of Health in order for the couples whose marriages they solemnize to have even the most basic rights inherent in a marital relationship recognized.
According to Fowler, the ministers do not want to sign a government form that affirms an understanding of marriage that is contrary to what they believe and teach, but at the same time, they believe that, under God, civil rulers should ensure enforcement of the rights that naturally arise out of the obligations assumed in a marital relationship, thereby upholding societal respect for marriage.
“The civil law,” Fowler said, “puts these ministers in a position in which they may have to forego one or the other of these beliefs in the conduct of their ministry to married couples. However, if the Certificate of Marriage purports to define marriage without regard to the sex of the two parties, which appears to be the case, then the certificate itself may be ‘void and unenforceable’ anyway under the Tennessee Constitution.”
The petition notes that under former-Governor Bill Haslam, the department changed the Certificate of Marriage form following the U.S. Supreme Court’s 2015 decision in Tanco v. Haslam (a companion case to Obergefell v. Hodges involving certain Ohio laws). But the petition, quoting Federal District Court Judge Aleta Traugher and the legal arguments submitted by Tennessee’s Attorney General & Reporter Herbert Slatery, states that Judge Trauger’s Final Order and Permanent Injunction did not enjoin enforcement of the provision in the Tennessee Constitution making “void and unenforceable” any “policy, law, or judicial interpretation purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman.”
Based on this, the petition asks the department and commissioner either to reinstate the Certificate of Marriage that was issued prior to the Obergefell decision or discontinue issuing a certificate until such time as the statutory requirement that marriage licenses be issued only to “male and female contracting parties” is changed in a constitutional manner.
The Department of Health and Commissioner Piercey have 60 days in which to decide what they will tell these ministers. If the department takes no action, then petitioners will be authorized by law to pursue a lawsuit against the department in state court.
Petitioners hope Governor Lee will make clear to these ministers and ministers across the state the position of his administration in regard to the effect of Judge Trauger’s Final Order on the Tennessee Constitution. Fowler said he hopes Governor Lee will not take the extreme position that the U.S. Supreme Court has the power to actually change the language in Tennessee licensing statutes when the plaintiffs in Tanco did not even sue over them.
David Fowler, general counsel for the Constitutional Government Defense Fund, a division of The Family Action of Council of Tennessee, is available for comment.