Constitution Check: Did the Supreme Court take away states’ power over marriage?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at remarks made by a Tennessee judge that his court lacked the power to decide a divorce case because of the Supreme Court’s Obergefell decision.


“What actually appears to be the intent and (more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/divorce litigation altogether….The conclusion reached by this court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage and, thereby, at a minimum, contested divorces.  Consequently, since only our federal courts are wise enough to address the issues of marriage – and therefore contested divorces – it only follows that this court’s jurisdiction has been preempted.

 – Excerpt from a decision on August 28 by Jeffrey M. Atherton, an elected judge in state Chancellor Court for Hamilton County, in Chattanooga, explaining his dismissal of a divorce case between an opposite-sex couple, Pamela and Thomas Bumgardner of Signal Mountain, Tenn.


From the time the Constitution went into effect more than two centuries ago, courts at both the federal and state levels have shared the authority to interpret what the words of that basic document mean, case by case.  But two specific provisions can often determine how that authority is divided up: Article VI makes the Constitution and its interpretation as well as federal laws based on the Constitution supreme over state constitutions and laws, and the Tenth Amendment assigns to state governments all power not explicitly given to the federal government.

Since the Supreme Court’s 1803 decision in Marbury v. Madison, the Supreme Court has claimed the final word on what the Constitution means, so state provisions that conflict must yield to those interpretations.  And a multitude of decisions by the Justices have interpreted the Tenth Amendment to protect the powers that states have traditionally used as part of government that operates closest to the people themselves.

As recently as two years ago, the Supreme Court in the case of United States v. Windsor ruled explicitly that state governments remain the primary authority to define marriage and its benefits.  It did so in striking down the federal Defense of Marriage Act, which had denied federal marital benefits to same-sex couples who were legally married in their home states, under state law allowing such marriages.

This past June, in the case of Obergefell v. Hodges, the Supreme Court interpreted how that basic state power over marriages can be used constitutionally when it conflicts with a civil right guaranteed by the Constitution’s Fourteenth Amendment.   The bans on same-sex marriage in Tennessee and other states, the ruling said, must yield to that Amendment’s guarantee of equality in how a law applies to the most intimate relationship between people – that is, the choice of a life partner in marriage.

The decisions in Windsor and Obergell, together, provide a classic illustration of how the Constitution operates along the boundary between national and state power, and between Article VI and the Tenth Amendment.   Nothing in Obergefell defeats the continuing power of states to decide what benefits go with marriage, and to decide who can marry – so long as a state does not discriminate against people that the Constitution makes equal.   And, by implication, it left entirely intact the power of states to write and enforce laws governing divorce – that is, when marriages may be ended.

A state judge in Tennessee who in late August interpreted the Obergefell decision as having withdrawn entirely his court’s power to decide a divorce case simply got that decision wrong.  His reasoning was that the ending of Tennessee’s choice to exclude gays and lesbians from the marital institution went far beyond the question that was actually decided – that is, equal access to that institution (and, by implication, to divorce) – and actually achieved a complete federal takeover of the legal nature of that institution.

That is, in short, a political argument, not judicial reasoning.  The Supreme Court actually had responded only to a plea to share the benefits of marriage (and, by implication, the option of divorce) with a category of individuals whom the court in a series of decisions over the years has treated as entitled to equal treatment under the Constitution.

From the Supreme Court’s view of the matter, this was an extension of the constitutional idea that race cannot be used as the basis for access to marriage (and divorce).  The idea that people of different races cannot marry was ended by the court in 1967 in the case of Loving v. Virginia.   Since then, the category of people who cannot be excluded from equal legal opportunity has been extended to gay people.

There is no doubt, of course, that the series of court rulings providing constitutional equality to homosexuals and their partners has brought about profound cultural change – and, perhaps, especially so since that trend has now reached the revered institution of marriage.  That always is disturbing, in at least some ways, because it forces people to choose either to adapt or to continue to harbor a resentment.

As America tries, with some obvious discomfort, to adapt to the Obergefell decision, it is to be expected that some publicly elected officials (among others) are going to balk at adapting to that ruling.  And judges who have to go before the voters from time to time are likely – at least now and then – to become among those who balk.  In Chattanooga, Judge Atherton has balked.

When the full extent of his August 28 decision is examined, however, it is clear that his remarks about the effect of the Obergefell decision on Tennessee’s approach to marriage and divorce were actually not necessary to his decision.  That is what lawyers and judges call “dicta,” or something like mere commentary.

After his lament about what he felt the Supreme Court had done, he conceded that he might be “found in error” about the loss of jurisdiction over all divorce cases, so he proceeded to make it clear that he would have denied divorce to Mr. and Mrs. Bumgardner anyway.

He applied the specific requirements of Tennessee law as it applies to divorce claims, and found that the couple had not satisfied those laws.  He said they had not convinced him “that the parties’ relationship has disintegrated beyond salvaging and that their affection for each other is extinguished.”

The judge also declared flatly that each of the marital partners had lied to the court in their filings about crucial facts in their relationship, thus committing “fraud on the court.”  And he found that the Bumgardners had not obeyed local court rules on what must be included in documents filed in a divorce case.

He sought to ease the displeasure of the ruling refusing divorce by pronouncing the couple, outside of this court case, as being “truly ‘good’ people.”  But, he concluded, the Bumgardners had not proved “entitlement to relief” under the state’s laws.  In the end, he said, he was “not convinced that this marriage is irretrievably broken” – a conclusion that conforms entirely to Tennessee’s own reasons for putting some limits on the option to divorce.

He thus had made his political point, even though he had no judicial need to do so.

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