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Tenn. clerks told not to marry gay couples in letter from anti-LGBTQ lawyer

Attorney has history of encouraging state to disregard Obergefell

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Tenn. clerks, gay news, Washington Blade
Tenn. clerks, gay news, Washington Blade

An anti-LGBTQ clerk is urging Tenn. clerks to disregard the Supreme Court ruling for marriage equality. (Photo by formulanone via Wikimedia Commons)

Clerks in Tennessee have been operating under the assumption — one widely held by just about every legal authority — that they’re bound by the U.S. Supreme Court to grant marriage licenses to same-sex couples, but one anti-LGBTQ lawyer in the state is now telling them they’re doing their job wrong.

Nearly five years after the U.S. Supreme Court ruled for same-sex marriage nationwide, all 95 county clerks in Tennessee received a letter this week informing them they should be operating instead under the state constitution law that makes “void and unenforceable” any policy or law “purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman,” according to the Family Action Council of Tennessee.

The letter was composed by David Fowler, general counsel for the Government Defense Fund, a sister organization to the Family Action Council.

Just about everyone else would say marriage rights for same-sex couples are guaranteed by the U.S. Constitution as a result of the U.S. Supreme Court’s landmark decision in 2015 in Obergefell v. Hodges.

Among the plaintiffs in that very consolidated lawsuit were same-sex couples from Tennessee. In the case of Tanco v. Haslam, those couples sought to have Tennessee recognize their marriages performed out of state. Although the U.S. Sixth Circuit Court of Appeals ruled against them, the U.S. Supreme Court overturned that ruling in the Obergefell case.

Fowler’s reasoning for disregarding that decision is very technical and legally dubious. It seems to rely on a legal memo Tennessee Attorney General Herbert Slatery filed in federal court calling for a limited injunction to the same-sex marriage ban that would not “seek the wholesale invalidation” of marriage statutes. Trauger’s final injunction doesn’t seem to address that and instead relies solely on the Obergefell decision.

That means, according to Fowler, the law is still in operation. To back up his assertion, Fowler goes back to 1984 and cites an opinion at the time from a Tennessee attorney general who opined state officers must consider a statute to be constitutional and in effect “until it is declared unconstitutional by a court of competent jurisdiction.”

“It is indisputable that no court has declared the provision in Tennessee’s Constitution unconstitutional and enjoined its enforcement,” Fowler said in a statement. “So, if this is the opinion of the attorney general, then it should apply with even greater force when it comes to interpreting how a decision of the U.S. Supreme Court regarding another state’s law applies to Tennessee’s laws. This seems especially true when Judge Trauger could have chosen to enjoin enforcement of the state constitutional provision in question and didn’t do so at the attorney general’s urging.”

It’s absolutely untrue no court has enjoined enforcement of the Tennessee ban on same-sex marriage. Trauger, in fact, issued a final injunction against the constitutional amendment in August 2015 after the Obergefell decision.

Although Fowler didn’t explicitly threaten any legal action against the clerks, he says he’s representing ministers who are considering “what steps should next be taken by them…to be assured that they are not affirming a form of civil marriage contrary to their beliefs.”

Asked by the Washington Blade via email whether he intends the letter to lay the groundwork for litigation compelling the U.S. Supreme Court to revisit Obergefell, Fowler said his purpose was more limited in scope.

“The purpose of the letter was simply that which was stated, to call to the attention of our county clerks the constitutional fact that the provisions in our state constitution applicable to marriage licenses have not been enjoined by a court or repealed by vote of the people, meaning they have not been excused from complying with it and, because they are purely administrative officials, they have no judicial authority to interpret the U.S. Constitution or the Tennessee Constitution or to interpret licensing statutes in light of the language in the two Constitutions and the Obergefell ruling,” Fowler said. “They are not judges.”

The Tennessee attorney general’s office didn’t respond to the Blade’s request to comment on Fowler’s letter.

Shannon Minter, legal director of the National Center for Lesbian Rights and attorney representing clients in the Tanco v. Haslam case, told the Blade Fowler’s letter “has no legal basis whatsoever.”

“This is a political stunt, not a serious legal threat,” Minter added. “If Fowler actually followed through on filing a lawsuit, it would be thrown out. Marriage equality is the law of the land, including in Tennessee.”

The letter to clerks wasn’t the only step Fowler has taken in recent days. Last month, he filed a separate petition with the Tennessee Department of Health on behalf of several ministers questioning the constitutionality of the state marriage licenses they sign upon performing a marriage ceremony. Fowler calls on the agency to void the current Tennessee marriage license form, declare it invalid, and reinstitute the license that was issued prior to the U.S. Supreme Court ruling for same-sex marriage.

Tennessee Gov. Bill Lee’s administration has until Feb. 17 to respond, according to the Family Action Council. A Department of Health spokesperson, who asserted the agency “cannot comment on pending litigation,” declined comment in response to an inquiry from Tennessee local outlet FOX 17.

According to the Chatanoonga Times Free Press, Fowler, a former state senator from Signal Mountain in Tennessee, has brought several lawsuits against Tennessee counties on similar grounds. Most of those cases have been dismissed, including one in Williamson County in 2018 when Fowler argued the 2015 Supreme Court decision on same-sex marriage invalidated all state marriage laws.

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The White House

White House, Don’t Say Gay law: “This is discrimination, plain and simple”

“State officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves”

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White House Press Secretary Karine Jean-Pierre (The White House)

WASHINGTON – The White House Press Secretary Karine Jean-Pierre released a statement Friday as Florida’s notorious ‘Don’t Say Gay’ law took effect, saying “[…] state officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves.”

President Biden also tweeted about the law prior to leaving for Camp David to spend the July 4th holiday weekend, calling the law “the latest attempt by Republicans in state houses to target LGBTQI+ students, teachers, and families.”

In her statement, Jean-Pierre said:

“Today, some of Florida’s most vulnerable students and families are more fearful and less free. As the state’s shameful “Don’t Say Gay” law takes effect, state officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves.

“Already, there have been reports that “Safe Space” stickers are being taken down from classrooms. Teachers are being instructed not to wear rainbow clothing. LGBTQI+ teachers are being told to take down family photos of their husbands and wives—cherished family photos like the ones on my own desk.

“This is not an issue of “parents’ rights.” This is discrimination, plain and simple. It’s part of a disturbing and dangerous nationwide trend of right-wing politicians cynically targeting LGBTQI+ students, educators, and individuals to score political points.

“It encourages bullying and threatens students’ mental health, physical safety, and well-being. It censors dedicated teachers and educators who want to do the right thing and support their students. And it must stop.

“President Biden has been very clear that every student deserves to feel safe and welcome in the classroom.

“The Department of Education will be monitoring this law, and any student or parent who believes they are experiencing discrimination is encouraged to file a complaint with the Department’s Office for Civil Rights.

“Our Administration will continue to fight for dignity and opportunity for every student and family—in Florida and around the country.”

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Florida

Florida county’s school policy critics say “essentially targets LGBTQ+ kids”

“Sending out a parent notification could be seen as placing a target on a student’s back,” said Lauren Kelly-Manders, a Tallahassee resident

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Screenshot/YouTube students in a classroom generic news coverage

TALLAHASSEE – The Leon County School Board this week unanimously approved its “LGBTQ Inclusive School Guide” after a rancorous and at times heated debate Tuesday. At the heart of the new policy are guidelines that critics charge will harm LGBTQ+ youth in the school system.

The Tallahassee Democrat newspaper reported what drew the most debate was a provision that a school will notify parents — by form — if a student who is “open about their gender identity” is in a physical education class or on an overnight trip. 

Some teachers and students during the Tuesday night meeting said the policy will “out” LGBTQ+ students — revealing their sexual orientation or gender identity without their permission. 

While the policy language does explicitly say a student’s sexual orientation, gender identity or expression “should not be shared with others without their input and permission,”  advocacy groups and activists claim that in “real world” application the policy’s danger to Outing LGBTQ+ kids remains regardless.

Los Angeles-based writer and actor Benjamin Siemon took to Twitter angrily noting that the policy “essentially paints these children as sex offenders that require warnings.”

Supporters of the school board’s new policy included the Leon County chapter of Mom’s for Liberty, a national far-right anti-LGBTQ+ activist group which has sought to ban LGBTQ+ books and curriculum nationwide. But the sticking point for the group is the provision doesn’t go far enough.

According to the Tallahassee Democrat, Sharyn Kerwin, head of the Leon County chapter of Mom’s for Liberty and who also served on the advisory committee to the School board as it crafted the new policy, told board members and the audience Tuesday: “Any attempt to withhold information from a parent or try to influence a child in a knowing way is against Florida law.”

Kerwin and other parents argued that the Parental Rights in Education bill, HB 1557, colloquially referred to as the “Don’t Say Gay” law requires school administrators to notify parents and many in the audience Tuesday citing biblical verses maintained discussions about sexual orientation have no place in schools.

Opponents charge that this policy will effectively weaponize bigotry and target LGBTQ+ kids, especially trans youth.

Critics of the notification policy say the district’s language is equating “gender identity” with LGBTQ sexuality. They note that even someone who is “straight” expresses themselves via their clothing choices or appearance and can be “open about their gender identity,” the Tallahassee Democrat noted.

“Sending out a parent notification could be seen as placing a target on a student’s back,” said Lauren Kelly-Manders, a Tallahassee resident. 

In the end, even with the policy approved, none were happy with the outcome as one side claiming not enough consideration was given to parental rights and opponents charging this will simply increase bullying of LGBTQ+ kids.

“Normally when we have something on the agenda, we have a group that’s for, and a group that’s against,” school board Vice Chair Alva Striplin noted adding, “Well, tonight we had everyone against.”

The school board voted to approve the guide unanimously 4-0.  According to the Tallahassee Democrat school board members will schedule another meeting to revisit the guide in six months to adjust the policy if needed. 

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The White House

White House announces 17 Presidential Medal of Freedom recipients

The nation’s highest civilian honor, the Presidential Medal of Freedom will be presented to those named at the White House on July 7, 2022

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Megan Rapinoe, an Out Olympic gold medalist is among those named ((Screenshot/YouTube via U.S. Soccer )

WASHINGTON – The White House today released President Joe Biden’s selection of recipients for bestowing the nation’s highest civilian honor,  the Presidential Medal of Freedom. The awards will be presented at the White House on July 7, 2022.

Included among the seventeen honorees are Megan Rapinoe, the Out Olympic gold medalist and two-time Women’s World Cup champion. She also captains OL Reign in the National Women’s Soccer League. She is a prominent advocate for gender pay equality, racial justice, and LGBTQI+ rights.

Also selected by the president for a posthumous recognition was Richard Trumka, the powerful labor leader and longtime Democratic ally of the LGBTQ+ community who passed away last August. Trumka had led the AFL-CIO since 2009 and who throughout his career, was an outspoken advocate for LGBTQ+ Americans, social and economic justice.

The Presidential Medal of Freedom is the Nation’s highest civilian honor, presented to individuals who have made exemplary contributions to the prosperity, values, or security of the United States, world peace, or other significant societal, public or private endeavors.

Presidential Medal of Freedom (The White House)

The following individuals will be awarded the Presidential Medal of Freedom:

Simone Biles
Simone Biles is the most decorated American gymnast in history, with a combined total of 32 Olympic and World Championship medals. Biles is also a prominent advocate for athletes’ mental health and safety, children in the foster care system, and victims of sexual assault.

Sister Simone Campbell
Sister Simone Campbell is a member of the Sisters of Social Service and former Executive Director of NETWORK, a Catholic social justice organization. She is also a prominent advocate for economic justice, immigration reform, and healthcare policy.

Julieta García
Dr. Julieta García is the former president of The University of Texas at Brownsville, where she was named one of Time magazine’s best college presidents. Dr. García was the first Hispanic woman to serve as a college president and dedicated her career to serving students from the Southwest Border region.

Gabrielle Giffords
Former Congresswoman Gabby Giffords was the youngest woman ever elected to the Arizona State Senate, serving first in the Arizona legislature and later in the U.S. Congress. A survivor of gun violence, she co-founded Giffords, a nonprofit organization dedicated to gun violence prevention.

Fred Gray
Fred Gray was one of the first black members of the Alabama State legislature since Reconstruction. As an attorney, he represented Rosa Parks, the NAACP, and Martin Luther King, who called him “the chief counsel for the protest movement.”

Steve Jobs (posthumous)
Steve Jobs (d. 2011) was the co-founder, chief executive, and chair of Apple, Inc., CEO of Pixar and held a leading role at the Walt Disney Company. His vision, imagination and creativity led to inventions that have, and continue to, change the way the world communicates, as well as transforming the computer, music, film and wireless industries.

Father Alexander Karloutsos
Father Alexander Karloutsos is the former Vicar General of the Greek Orthodox Archdiocese of America. After over 50 years as a priest, providing counsel to several U.S. presidents, he was named by His All Holiness Ecumenical Patriarch Bartholomew as a Protopresbyter of the Ecumenical Patriarchate.

Khizr Khan
Khizr Khan is a Gold Star father and founder of the Constitution Literacy and National Unity Center. He is a prominent advocate for the rule of law and religious freedom and served on the United States Commission on International Religious Freedom under President Biden.

Sandra Lindsay
Sandra Lindsay is a New York critical care nurse who served on the front lines of the COVID-19 pandemic response. She was the first American to receive a COVID-19 vaccine outside of clinical trials and is a prominent advocate for vaccines and mental health for health care workers.

John McCain (posthumous)
John McCain (d. 2018) was a public servant who was awarded a Purple Heart with one gold star for his service in the U.S. Navy in Vietnam. He also served the people of Arizona for decades in the U.S. House of Representatives and U.S. Senate and was the Republican nominee for president in 2008.

Diane Nash
Diane Nash is a founding member of the Student Nonviolent Coordinating Committee who organized some of the most important civil rights campaigns of the 20th century. Nash worked closely with Martin Luther King, who described her as the “driving spirit in the nonviolent assault on segregation at lunch counters.”

Megan Rapinoe
Megan Rapinoe is an Olympic gold medalist and two-time Women’s World Cup champion. She also captains OL Reign in the National Women’s Soccer League. She is a prominent advocate for gender pay equality, racial justice, and LGBTQI+ rights.

Alan Simpson
Alan Simpson served as a U.S. Senator from Wyoming for 18 years. During his public service, he has been a prominent advocate on issues including campaign finance reform, responsible governance, and marriage equality.

Richard Trumka (posthumous)
Richard Trumka (d. 2021) was president of the 12.5-million-member AFL-CIO for more than a decade, president of the United Mine Workers, and secretary-treasurer of the AFL-CIO. Throughout his career, he was an outspoken advocate for social and economic justice.

Wilma Vaught
Brigadier General Wilma Vaught is one of the most decorated women in the history of the U.S. military, repeatedly breaking gender barriers as she rose through the ranks. When she retired in 1985, she was one of only seven women generals in the Armed Forces.

Denzel Washington
Denzel Washington is an actor, director, and producer who has won two Academy Awards, a Tony Award, two Golden Globes, and the 2016 Cecil B. DeMille Lifetime Achievement Award. He has also served as National Spokesman for the Boys & Girls Clubs of America for over 25 years.

Raúl Yzaguirre
Raúl Yzaguirre is a civil rights advocate who served as CEO and president of National Council of La Raza for thirty years. He also served as U.S. Ambassador to the Dominican Republic under President Barack Obama.

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