Article VII, Section 1 of the Tennessee Constitution says that a county clerk’s duties “shall be prescribed by the General Assembly.” No state or federal court has ever enjoined the enforcement of this provision; it was not at issue in Obergefell.
Pursuant to the Tennessee Constitution, the Legislature authorized county clerks to issue marriage licenses to "male and female contracting parties.” The legislature has never amended the law to eliminate the words “male and female.” Yet because of the Obergefell ruling, county clerks have been issuing marriage licenses to same-sex couples anyway.
Who legally authorized county clerks to issue marriage licenses to persons other than “a male and female?" Does the judicial power allow the United States Supreme Court in a lawsuit that did not even include a county clerk as a party to order a county clerk to issue a marriage license that he or she has never been authorized by the General Assembly to issue?
Answers to these questions depend on one’s views regarding the separation of powers, federalism, and the nature of the judicial power.
Do you agree with FACT that the federal judicial power cannot order state officials to do that which he or she has never been authorized by state law to do?
