Based on recent evidence, it’s a pretty safe bet that John Roberts didn’t call any Tennessee state legislators for advice on legal interpretation. Or, at the very least, he didn’t call state Sens. Jeff Miller and David Fowler for advice on stare decisis, Article I and due process rights. Constitutional scholars they are not.
They are, however, ideologues out to defend marriage—or more accurately, to defend their defense of marriage—by intervening (along with 88 of their colleagues) in a lawsuit filed by the ACLU of Tennessee (and others) against the state. And yes, in a state that just chucked a few hundred thousand citizens off the health care rolls, all these legislators are fighting about banning gay marriage, which is legislatively known as the Defense of Marriage Act (DOMA), or in this case, one better: a state constitutional amendment.
Lawmakers and state officers, the ACLU contends, violated Tennessee’s Constitution by failing to give six months’ notice that a constitutional amendment was in the works; thus, the plaintiffs say, the Defense of Marriage amendment should be derailed. It’s currently being sorted out by Davidson County Chancellor Ellen Hobbs Lyle, who recently ruled that the grandstanding legislators had the right to intervene in the case and be represented by the Alliance Defense Fund, a national conservative anti-ACLU group. It probably won’t stop in chancery, though; the state Supreme Court, sadly enough, may make case law about public notice based on legislative pandering by gay-hating zealots.
But at least they’ll have good advice. Miller, the bill’s Senate sponsor, and Fowler, along with their colleagues, argue in a legal brief that news of the gay marriage amendment was “pervasively published throughout Tennessee by numerous media publications and outlets.” (See? Even the writing is bad.) Thus, they argue, it doesn’t matter that the secretary of state didn’t give formal notice of the constitutional amendment six months ahead of election day; informal word had been “pervasively published” via the media, and the constitutional requirement was fulfilled. (Funny how the liberal media looks a lot more trustworthy to these right-wingers at the moment.)
If irony abounds, though, so does hypocrisy. That’s because in April of 1998, Miller and Fowler were quoted in the Chattanooga Times Free Press arguing exactly the opposite about a constitutional amendment to protect victims’ rights. “I believe that the whole amendment has to be published in its entirety at least six months prior to the election,” said a pious Jeff Miller. “I don’t think articles in the newspaper are going to get it, unless the resolution was published in its entirety.”
And Fowler, says the article, agrees. “Let’s make sure before we tinker with the fundamental law of our state that the public knows exactly what we are doing,” he added. Ah, the smell of sanctimonious blather on a hot summer day.
Guys, no one expects you to be geniuses. Lord knows you’re not in line to be chief justice of anything larger than a tennis court. But before you very publicly, very gratuitously take a legal position that you insist is based on principle, it would be wise to take a look back at your own public comments. In fact, take some version of your own advice: don’t tinker with the fundamental law of our state unless you know what you’re doing.