Many readers may be scratching their heads right now, wondering how the legalization of gay marriage could possibly disrupt straight divorce proceedings.
But spare a moment to hear out Jeffrey M. Atherton, if for no other reason than that the judge’s argument is an increasingly common one as conservatives across the country claim the Supreme Court overreached with its June 26 watershed ruling.
Today’s study in legal reasoning begins in Chattanooga, Tenn., and inside Atherton’s Hamilton County courtroom.
Atherton doesn’t appear to have a history of antagonistic rulings. He was easily elected in 2010 and re-elected without opposition in 2014, although a 2012 poll of local lawyers didn’t give him great marks, according to the Chattanooga Times Free Press. According to a 2010 letter to the editor from a former legal debate student of his, Atherton was a selfless champion of legal procedure.
“Despite the time away from his supportive family and the impact on his billable hours, Jeffrey M. Atherton (or Mr. A as he is known to us) spent eight-plus hours per week for more than 20 years pouring his life into high school students who wanted to learn about the law,” wrote Pamela Rector, a U.S. soldier deployed to Afghanistan.
But it was another line from Rector’s letter that hinted at Atherton’s gay marriage meltdown five years later.
“He has lived the principles that he taught us,” she said: “desire for justice, devotion to excellence, commitment to character, love of the law and faith in God.”
And so it was that when Thomas and Pamela Bumgardner walked into Atherton’s court in late July hoping for a quick and easy divorce, the judge apparently had other ideas.
The sexagenarian couple had married in November of 2002, according to the Times Free Press. But after 13 years together, they wanted to split, claiming straying allegiances and irreconcilable differences.
After four days of testimony including seven witnesses and 77 exhibits, however, Atherton unexpectedly ruled that he would not be granting the Bumgardners a divorce.
But it was his argument against the divorce that has made waves around the world.
After quickly running through court testimony about money trouble, a temporary restraining order and claims of infidelity, Atherton jumped into a bold legal analysis that drips with sarcasm.
“The Tennessee Court of Appeals has noted that Obergefell v. Hodges … affected what is, and must be recognized as, a lawful marriage in the State of Tennessee,” Atherton began. “This leaves a mere trial level Tennessee state court judge in a bit of a quandary. With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’ s judiciary must now await the decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage.”
“The majority’ s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land, accurately described by Justice Scalia as ‘a naked judicial claim to legislative— indeed, super-legislative— power,'” Atherton continued.
The Supreme Court’s decision was “troubling” because it amounted to a “judicial fiat,” Atherton argued. “… 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.”
“Perhaps Tennessee’ s perspective concerning keystones and central institutions must submit to the perspective of those so much higher and
wiser than ourselves,” he wrote sarcastically before essentially accusing the Supreme Court of trashing Tennessee’s constitution, if not democracy itself, by legalizing gay marriage.
“To say the least, Tenn. Const. art. XI, § 18,” which defined marriage as between a man and a woman, “having been adopted by the people of the State of Tennessee in 2006 as reflecting the will, desire, public policy and law of this State, and to be applied by its judiciary, seems a bit on the incompatible side with the U.S. Supreme Court’ s ruling,” he opined. “One would think that if the U.S. Supreme Court intended to overturn all or part of a state’ s constitution, it would do so expressly, rather than by implication.”
Obergefell was a particularly tetchy decision for Tennesseans. In Jan. 2015, the Supreme Court consolidated it with three others, including a challenge to Tennessee’s gay marriage ban, Tanco v. Haslam.
In a footnote, Atherton then asked if the Supreme Court’s gay marriage ruling didn’t also overturn another section of the state’s constitution, which proudly states that “the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”
But it is Atherton’s next paragraph that is the real doozy, in which he calls the Supreme Court’s decision “judi-idiocracy.”
“Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism,” he begins sarcastically, “implementation of this apparently new ‘super-federal-judicial’ form of benign and benevolent government, termed ‘krytocracy’ by some and ‘judi-idiocracy’ by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.”
Faced with this “challenge,” Atherton’s decision is simply to throw his hands up in the air and claim that the Supreme Court’s decision had “divested subject matter jurisdiction from this court when a divorce is contested.”
In other words, if a state can’t even deny gay couples the right to marry anymore, then what’s the point of being in the marriage business anyways. Let the feds handle it.
“Individuals, at least according to the majority opinion, are apparently authorized (along with the federal judiciary) to define when a marriage begins and, accordingly, ends, (without the pesky intervention/intrusion of a state court),” he wrote.
Atherton isn’t alone in trying this reductio ad absurdum approach. It’s essentially the same as the slippery slope argument: now that “individuals” can decide when and who to marry, then all the rules are off.
“When you say it’s not a man and a woman anymore, then why not have three men and one woman or four women and one man?” Texas Republican representative Louie Gohmert infamously told tea party supporters in 2013. “Or why not, you know, somebody has a love for an animal or-? There is no clear place to draw a line once you eliminate the traditional marriage.”
GOP presidential hopeful Ben Carson said much the same in December.
“When I mention bestiality or pedophilia in the same sentence with homosexuality, people say ‘Carson says they’re the same.’ Of course they’re not the same,” he told the New York Times. “That point was if you change the definition of marriage for one group, you’ll have to change it for the next group and the next group.”
Of course, Atherton’s decision also comes on the heels of more recent nationwide protests to the Supreme Court ruling. The best known is Kim Davis, the Kentucky county clerk who was ordered taken into custody on Thursday after invoking “God’s authority” to refuse issuing marriage licenses to gay couples.
Other states are also contemplating getting out the marriage business entirely. In Mississippi, State House Judiciary Chairman Andy Gipson told the Clarion-Ledger that he had some interest in that idea. “I personally can see pros and cons to that. I don’t know if it would be better to have no marriage certificate sponsored by the state or not. But it’s an option out there to be considered.”
In a response to a federal court ruling last year overturning Oklahoma’s gay marriage ban, the state’s House of Representatives voted in March to abolish marriage licenses, leaving them entirely up to clergy. “Marriage was historically a religious covenant first and a government-recognized contract second,” Republican Rep. Todd Russ told The Oklahoman.
And in a statement supporting Davis issued Thursday, another GOP hopeful, Texas senator Ted Cruz, seemed to sandwich the two arguments — God, on the one hand, and federal lawlessness on the other — together.
“Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America,” Cruz said. “I stand with Kim Davis. Unequivocally. I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion.”
“In dissent, Chief Justice Roberts rightly observed that the Court’s marriage opinion has nothing to do with the Constitution,” Cruz continued. “Justice Scalia observed that the Court’s opinion was so contrary to law that state and local officials would choose to defy it.”
But several of Atherton’s Chattanooga contemporaries thought the judge was out of line by putting the Supreme Court on trial during a local divorce proceeding.
“He is just making a statement,” Regina Lambert, one of the lawyers representing plaintiffs in Tanco v. Haslam, told the Times Free Press. “I just think change is hard for people.”
“I don’t know for sure,” Chattanooga attorney Mike Richardson told the newspaper, “but I suspect the U.S. Supreme Court did not intend to preempt divorce law.”
Quizzed about his quixotic decision on Wednesday, Atherton didn’t say much.
“I don’t want extraneous conversation,” he told the Times Free Press. “I’ll have to stick with the words of the order.”
One wonders what his students think of his legal reasoning, now.
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