Constitutional Law

Two judges opposing same-sex marriage react with 'doozy' of an opinion, refusal to perform marriages

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Judges in Oregon and Tennessee are expressing their opposition to same-sex marriages in different ways.

Judge Vance Day of Salem, Oregon, has stopped performing marriage ceremonies because of his religious beliefs against same-sex marriage, the Oregonian reports. He is now taking steps to set up a legal defense fund after receiving inquiries from the Oregon Commission on Judicial Fitness and Disability.

A judge in Tennessee, meanwhile, refused to grant a divorce to a heterosexual couple and cited the Supreme Court’s gay-marriage decision as one reason for his decision, report the Washington Post, the Chattanooga Times Free Press and Above the Law.

Above the Law calls the decision (PDF) by Judge Jeffrey Atherton of Chattanooga “a doozy of an opinion” and says it resorts to “homophobic smears” with its reference to federal decisions made with an “iron fist and limp wrist.”

Atherton said that the Supreme Court’s decision in Obergefell v. Hodges left Tennesseans “incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces.”

“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,” he wrote.

Atherton went on to criticize the “patronizing and condescending verbiage” of the Obergefell opinion and its “judicial fiat” that “pre-empt[s] state courts from addressing marriage/divorce litigation altogether.”

“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 the alternative, Atheron found he had jurisdiction because the marriage was uncontested, but he still denied the divorce on statutory grounds.

Atherton noted that Tennessee hasn’t adopted a complete no-fault approach to divorce. He cited these reasons for denying the divorce: Inappropriate marital conduct had not been proven, the parties hadn’t executed a marital dissolution agreement required for divorce based on irreconcilable differences, the parties hadn’t stipulated as to grounds for the divorce, and both displayed unclean hands because of misrepresentations in the litigation.

Attorneys told the Times Free Press that the couple could refile for divorce if they cite other grounds. In an interview with the newspaper, Atherton suggested another possibility. “Hopefully,” he said, “they can reconcile.”

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