Late last week, a Tennessee trial court judge refused to grant a divorce to an opposite sex couple because of the Supreme Court’s same-sex marriage ruling in Obergefell. When I first saw the news item on social media, I thought it was a hoax. It’s not:
A local judge contends the U.S. Supreme Court decision on same-sex marriage has derailed Tennessee’s ability to determine what constitutes divorce — leaving one Signal Mountain couple married against their will.
His reasoning is that since the Supreme Court redefined marriage laws in Tennessee, he has to wait for Supreme Court guidance before making any marriage-related rulings. Or, as the judge said:
The conclusion reached by this Court is that Tennesseans 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.
So he denied the couple’s divorce petition.
While I take a backseat to no one in my loathing of Obergefell, and I’ve applauded Rowan County, Kentucky, clerk Kim Davis, I can’t get on board with Judge Jeffrey Atherton. First, his ruling is far less a matter of conscience than it is an act of trolling. There’s no indication that he refused to grant no-fault divorces before Obergefell, so he’s simply responding to the Supreme Court’s lawless ruling with his own intentionally lawless decision — but in a substantially different area of law. Second, his act of trolling has a far greater impact on citizens’ actual rights than did Kim Davis’s act of conscience. While couples could drive to a neighboring county to get a marriage license, divorce plaintiffs can’t forum shop in different counties. Tennessee law explicitly grants divorce jurisdiction to the county courts where the defendant resides.
If Judge Atherton wants to take on Obergefell, I’d suggest he do so in a manner that doesn’t violate citizens’ lawfully-enacted and longstanding statutory rights. Trolls belong on Twitter, not on the bench.