A Tennessee judge, same-sex marriage, and opposite-sex divorce

|The Volokh Conspiracy |


Many sources have been noting that Tennessee Judge Jeffrey Atherton's opinion Monday in Bumgardner v. Bumgardner harshly and sarcastically condemns the Supreme Court's same-sex marriage decision, and apparently takes the view that the Court's actions with regard to marriages strip state courts of the power to consider contested divorces:

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/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. At least, according to Justice Scalia, the majority opinion in Obergefell represents "social transformation without representation." It also appears to have removed subject matter jurisdiction from this Court. As a result, the Complaint and Counter-claim are dismissed.

The logic of this argument eludes me, but I should note that the judge goes on to conclude that "irreconcilable differences" divorces are still within the court's jurisdiction:

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new "super-federal-judicial" form of benign and benevolent government, termed " krytocracy" by some and " judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court. In any event, it should be noted that the victory of personal rights and liberty over the intrusion of state government provided by the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested. Individuals, at least according to the majority opinion, are apparently authorized (along with the federal judiciary) to define when a marriage begins and, accordingly, ends, (without the pesky intervention/intrusion of a state court) leaving irreconcilable divorces under Tenn. Code Ann. 36-4-101(11), Tenn. Code Ann. § 36-4-103, and perhaps even Tenn. Code Ann. § 36-4-129 to some degree (but only when the grounds and/ or irreconcilable differences are stipulated),
intact and within the jurisdiction of this Court to address.

The judge ultimately does deny the divorce, but on the grounds that, in the judge's view, the statutory requirements haven't been met, and the parties' testimony wasn't credible. I'm not sure how common such conclusions are in Tennessee divorce cases, or how justifiable they are in this case. Still, it appears that the judge's justification for his decision to deny the divorce to the parties in this case rested primarily on the statutory analysis, and not on his fit of pique in the first part of the opinion.