Judge declines divorce case because SCOTUS ruling is unclear “when a marriage is no longer a marriage”

Hamilton County Chancellor Jeffrey Atherton denied a couple’s divorce petition citing for his reason that the Supreme Court ruling in Obergefell is unclear about “when a marriage is no longer a marriage.”

Read the rest of his brilliant opinion regarding the SCOTUS marriage ruling below.


The Tennessee Court of Appeals has noted that Obergefell v. Hodges, 135 S. Ct. 2584 2015) affected what is, and must be recognized as, a lawful marriage in the State of Tennessee. Borman v. Pyles -Borman, Tenn. Ct. App. Case No. E2014- 01794- COA-RV- CV, filed August 4, 2015. This leaves a mere trial level Tennessee state court judge in a bit of a quandary. With the U.S. Supreme Court having 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. 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. Perhaps even more troubling, however, is that there may also now be a new or enhanced field of jurisprudence—federal preemption by “judicial fiat.” Preemption, being based upon the Supremacy Clause (U.S. Const. art. VI, cl. 2), has generally been effected by the U.S. Congress through federal legislation. See Oneok, Inc. v. Learjet, Inc., 135 S. Ct 1591, 1595 (2015). Further, there is (or at least there once was) a presumption against finding preemption of state law in areas traditionally regulated by the States. California v. ARC Am. Corp., 490 U.S. 93, 101 (1989). Regardless of this presumption, and regardless of the states’ traditional regulation of the area of marriage and divorce, and regardless of what might now arguably be concurrent state and federal jurisdiction to address those issues, what actually appears to be the intent and (more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/ divorce litigation altogether. The presumption of concurrent state-court jurisdiction is overcome by “a clear incompatibility between state-court jurisdiction and federal interests.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct 740, 748 (1981) (quoting Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981)). According to the majority opinion, “marriage is a keystone of the Nation’ s social order” and is “a central institution of the Nation’s society.” Obergefell, 135 S. Ct. at 2590 (emphasis added). Perhaps Tennessee’s perspective concerning keystones and central institutions must submit to the perspective of those so much higher and wiser than ourselves. To say the least, Tenn. Const. art. XI, § 18, having been adopted by the people of the State of Tennessee in 2006 as reflecting the will, desire, public policy and law of this State, and to be applied by its judiciary, seems a bit on the incompatible side with the U.S. Supreme Court’ s ruling. Interestingly, Tenn. Const. art. XI, § 18 is barely mentioned[1], let alone expressly overruled, by Obergefell. In fact, the only reference to Tenn. Const. art. XI, § 18 in Obergefell this Court has located is in one of the opening paragraphs—not in the holding. One would think that if the U.S. Supreme Court intended to overturn all or part of a state’s constitution, it would do so expressly, rather than by implication.[2] 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.” Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting). It also appears to have removed subject matter jurisdiction from this Court. As a result, the Complaint and Counter-claim are dismissed.

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.


1. In all candor, this Court feels the inclusion of Tenn. Const. art. XI. § 18 once in a string citation stretches the definition of the word “mentioned.” See Obergefell, 135 S. Ct. at 2593.

2. Perhaps, by implication, Tenn. Const. art. I, § 2, has been similarly overruled? It provides: “That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.” Tenn. Const. art. I, § 2.

Full text of ruling.

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