Among the appropriate responses to legislative snake oil: When a lawmaker begins the presentation of a bill by assuring colleagues that it doesn’t change current law on the very topic it addresses, cock an eyebrow.
When that legislator then goes on to describe what the bill would do – and it sounds manifestly unconstitutional – roll your eyes.
And if, after that, someone invokes the Bible and the teachings of our Lord Jesus as proof that the bill is needed, shake your head slowly and sigh.
All those cues were present recently when a Senate committee took up the innocent-sounding Marital Contract at Common Law Recording Act, which is anything but innocent.
Basically, it sets up a procedure whereby a couple can file a document with a county clerk declaring themselves married, “at common law.” Provided, that is, the couple consists of “one (1) man and one (1) woman.”
You will recall that in 2015 the Supreme Court ruled, in Obergefell v. Hodges, that marriage can’t be limited to a man and a woman. In response, the General Assembly in 2016 passed a resolution expressing disagreement with “the judicial imposition of a marriage license law that is contrary to the express will of this body and the vote of the people of Tennessee.”
That impotent chest-thumping accomplished nothing. Hence the current effort to pass a bill that would create a marriage path that expressly forbids same-sex couples.
Sen. Janice Bowling, the sponsor making the presentation, said her bill “declares that a marriage between a man and a woman is not a creation of the state government or its statutes, it is a common law right.”
In further support, Rev. Paul Becker, a Lutheran pastor from Kingsport, told lawmakers that it grieves him to sign a state-issued marriage license these days.
“I cannot teach and preach a biblical view of marriage as a lifelong union of one man and one woman, which our Tennessee Constitution also recognizes, and then endorse with my signature a policy or law that redefines law contrary to the laws of nature and nature’s god,” he said.
He supports the legislation, Becker went on, because it endorses a view of marriage held “by all nations, people and languages since the beginning of creation, as our Lord Jesus teaches in Matthew, Chapter 19.”
Have you ever noticed how Jesus sometimes gets invoked in ways that would probably make him squirm if he were present?
Next up was a lawyer named Jeff Shafer. Shafer is director of the Hale Institute at New Saint Andrews College in Moscow, Idaho. Never heard of either? Join the club. But it’s safe to say that Shafer views the law through God-colored glasses.
The Supreme Court’s Obergefell decision, he said, did not pertain to common law marriage, adding that “state recognition of the natural family is not unconstitutional.”
When questioned by a committee member about the bill’s exclusion of same-sex couples, Shafer readily conceded the fact. “The common law knew of no other marriage than between a man and a woman,” he said, which he called common for “all human civilizations in all places and times.”
Among those (other than me) not buying any of this was another lawyer, Abby Rubenfeld of Nashville. Rubenfeld was part of the legal team in Tanco v. Haslam, a case that challenged Tennessee’s refusal to recognize same-sex marriages from other states, and that was consolidated into the Obergefell decision.
Which is to say, she knows whereof she speaks.
“This argument that it’s going to set up two separate paths to marriage is blatantly unconstitutional and in violation of the Obergefell decision, which is the law of the land,” she said of the bill.
The decision “very clearly held that all the rights and privileges of marriage have to go to everyone,” she added. “You can’t have ‘marriage light’ for LGBTQ people.”
One other thing: You may have read accounts of this bill saying it has the potential to make child marriage legal in Tennessee. That’s because there was no age requirement specified in the early renditions.
Whether that omission was intentional or not – and I’ve read both – it’s since been cleared up with an amendment to require that both parties have reached the age of majority,18.
The change makes the bill only marginally less offensive. “I love our state,” Rubenfeld told lawmakers. “But when I see proposed bills like this, it makes me ashamed of us.”
That’s another appropriate response.
Joe Rogers is a former writer for The Tennessean and editor for The New York Times. He is retired and living in Nashville. He can be reached at [email protected]