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Tennessee judge denies couple divorce based on gay marriage ruling
by Joseph Earnest September 3, 2015
Newscast Media CHATTANOOGA—When the Supreme Court issued the ruling in Obergefell v. Hodges in regard to homosexual marriage, it hadn't anticipated that such a ruling would be used to deny couples divorces.
A Tennessee couple has been denied a divorce by Chancellor Jeffrey M. Atherton, who wrote, "When the U.S. Supreme Court 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."
Pamela E. Bumgardner filed for divorce from her husband Thomas A. Bumgardner on September 29, 2014. After seven witnesses and 77 exhibits, the judge threw out the case and said his court had no jurisdiction over it.
The judge ruled that the Tennessee Court of Appeals had noted that Obergefell v. Hodges, affected what is, and must be recognized as, a lawful marriage in the State of Tennessee.
"With 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." Obergefell, 135 S. Ct. at 2629 ( Scalia, J., dissenting). Thus, it appears there may now be, at minimum, ( and obviously without any specific enabling legislation) concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation," Judge Atherton opined.
He also said that the effect of the Supreme Court ruling was to preempt state courts from addressing marriage or divorce litigation altogether.
"One would think that if the U.S. Supreme Court intended to overturn all or part of a states constitution, it would do so expressly, rather than by implication. 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 and central institutions such as marriage and, thereby, at 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.
"It also appears to have removed subject matter jurisdiction from this Court. As a result, the Complaint and Counter -claim are dismissed." Below is the condensed ruling:
It is highly unlikely that this decision will be appealed, because the Supreme Court would have to address an issue it doesn't appear to have the courage to address. In addition, with the "unclean hands" doctrine, the Bumgardners have relinquished their right to seek relief therefore no court is likely to grant them their prayer, which would be a legal divorce. The entire judge's decision can be read here. (pop-up)
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