A lawsuit against Bradley County Clerk Donna Simpson, who has been the target of litigation after she issued marriage licenses to same-sex couples, has been dismissed by a circuit court judge, …
A lawsuit against Bradley County Clerk Donna Simpson, who has been the target of litigation after she issued marriage licenses to same-sex couples, has been dismissed by a circuit court judge, resulting in the plaintiffs mulling whether to pursue further legal action.
Simpson was the subject of a lawsuit filed by the Rev. Guinn E. Green, pastor of the Kinser Church of God, and Bradley County Commissioner Howard Thompson. Green and Thompson were represented in the lawsuit by David Fowler, an attorney and president of the Family Action Council of Tennessee.
The lawsuit – Guinn E. Greene and Howard Thompson v. Donna Simpson – was filed in Bradley County Court in 2016.
In the Thursday ruling, 9th Judicial District Circuit Court Judge Michael Pemberton wrote the court had previously denied the defendants' motion to dismiss the case, pending a decision in a similar case in the Tennessee Court of Appeals, Grant et. al. v. Elaine Anderson, which was decided in May 2018.
“In its order … this court determined that the petitioners had the requisite legal standing to assert their claims,” Pemberton wrote. “However, the court of appeals affirmed the decision of the trial court in Grant that the petitioners therein did not have standing.”
Pemberton wrote “given the identical nature in each case,” the court was "constrained to follow the law set down by the Court of Appeals” in Grant.
In the Simpson case, the plaintiffs claimed the issuance of marriage licenses to same-sex couples violated the Tennessee Constitution, despite a 2015 U.S. Supreme Court decision in Obergefell v. Hodges legalizing gay marriage.
They argued the Supreme Court’s decision in Obergefell essentially voided Tennessee's marriage laws since those laws specifically defined marriage as between a man and a woman.
The Grant case was dismissed by the Tennessee Court of Appeals last year.
In that case, the plaintiffs sought “a declaration that those provisions of the Tennessee law relative to the licensing of marriages are no longer valid and enforceable” as a result of the Obergefell decision.
Succinctly, the petitioners argued the Obergefell decision invalidated all marriages in the state.
The plaintiffs also sought a declaration that “the continued issuance of marriage licenses” following the Obergefell decision violated their rights under the Tennessee Constitution.
However, they were unable to establish how they were adversely affected by such actions.
The plaintiffs argued their rights, under Article 1, Section 5 and 8 of the Tennessee Constitution, were violated in that they were “deprived of their right to ‘indirectly vote’ on the laws prescribing the duties of the county clerk."
However, the court noted none of the plaintiffs had been denied marriage licenses.
"Instead, they complain of the issuance of marriage license to others,” the opinion stated.
Accordingly, the court found that no factual allegations supported the plaintiffs' claims.
The plaintiffs also argued the Williamson county clerk, by issuing same-sex marriage licenses, “rewrote or adjudicated the existing statute by herself and prescribed to herself a duty not existing in the current statute."
But the court determined the plaintiffs had failed to claim how their rights under Article I, Section 23 and Article VII, Section 1 were “meaningless.”
“If the county clerk is exercising an authority or fulfilling a duty that has not been statutorily prescribed for her, we fail to see how it renders meaningless the citizen plaintiffs' rights to instruct their representatives," the court stated.
Stressing the legislature “retains the constitutional authority to prescribe the duties of the county clerk,” the court stated “in claiming an injury or harm resulting from the county clerk’s actions, the citizen plaintiffs also seem to ignore that they have a meaningful say in how the county clerk fulfills her duties."
The court noted the plaintiffs' right to vote in elections.
"The citizen plaintiffs, assuming they remain qualified voters, elect a county clerk every four years," the court stated.
Simpson attorney James F. Logan Jr., said he hopes Judge Pemberton’s decision will bring the matter to a close.
“It has cost the county thousands of dollars,” according to Logan, who said his firm has billed the county for tens of thousands of dollars in legal work related to the case.
He said he did not yet know the exact dollar amount billed to the county. But in an article previously published in the Cleveland Daily Banner, Logan, whose law firm also counsels the county government on legal matters, said the lawsuit could cost the county from $15,000 to $70,000 based on the current frequency of reviewing documents received as the case continued.
"We are still billing them," Logan said on Friday.
Logan noted the Supremacy Clause of the U.S. Constitution in that it renders Supreme Court rulings the law of the land.
“Most of us believe that the Supreme Court of the United States requires states to follow the law of the U.S. Constitution as determined by the Supreme Court,” Logan said.
He noted Simpson was simply performing her duties as county clerk.
"Donna Simpson was performing her duties as required by the State of Tennessee and the various departments of state government including public health, the Bureau of Vital Statistics and the state attorney general,” Logan said.
Fowler told the Banner he is considering pursuing the Simpson case and will be discussing the next steps with his clients.
"We have 30 days to decide what we are going to do," Fowler said. "We will be discussing the steps we can take under the rules of civil procedure or appeal."
Fowler contends the U.S. Supreme Court's decision in Obergefell does not enjoin – or prohibit – Tennessee from enforcing its constitutional amendment banning same-sex marriage.
"Federal courts cannot create law," Fowler said. "That means the constitutional provision is still in place."
Fowler declined to disclose how much it has cost his organization monetarily to litigate the case.
Bradley County Commissioner Howard Thompson told the Banner he is considering no longer pursuing legal action against the office of county clerk. He also said the expenses the county is incurring as a result of the case are a factor in his decision.
“It’s costing the county money,” Thompson said. “I don’t think prolonging it would be doing the right thing.”
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