By requiring all states to redefine marriage to include same-sex couples, the Supreme Court of the United States has claimed for the federal judiciary exclusive jurisdiction over marriage and divorce. Thus reasoned Jeffrey Atherton, a trial judge in Hamilton County, Tennessee, who recently dismissed a petition for divorce in part on the ground that his jurisdiction over the case was preempted by the Court’s ruling in Obergefell v. Hodges.

Constitutional commentator Lyle Denniston questions Judge Atherton’s reasoning. He reads Obergefell more narrowly; in his view, it requires only that states must extend the same legal privileges and benefits to a same-sex relationship as it does to a natural marriage. State court officials and judges are constitutionally bound to make it so.

Denniston’s interpretation of Obergefell is not implausible, but it is less plausible than Judge Atherton’s. The second sentence of the majority opinion in Obergefell frames the issue as whether same-sex couples will be deemed married “on the same terms and conditions as marriages between persons of the opposite sex.” Other passages in the opinion suggest that the Court intends the duties of parentage to extend to same-sex marriage. This suggests that the Court views its ruling as extending not merely to the right to enter into marriage, and access to the privileges of married persons under state law, but rather to all of the terms and conditions of marriage that pertain between a man and a woman.

Unanswered Questions

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Those terms and conditions include many legal presumptions, incidents, and other norms that cannot be extended equally to same-sex couples in any straightforward way. How, for example, would Denniston propose to apply the presumption of paternity to a man-man marriage? How would he apply it to a woman-woman marriage, where the father has not consented to termination of his paternity?

The terms and conditions of natural marriage also include all of those norms that presuppose, and are justified on the basis, that marriage is the union of a man and a woman. The prohibition against incest is justified on the ground that it expresses the state’s moral disapproval of incest and avoids genetic defects in potential offspring. Obviously, the first justification cannot extend to same-sex couples after Lawrence v. Texas, in which the Court ruled that states cannot employ moral justifications for laws burdening same-sex intimacy. And just as obviously, the second cannot extend to them in biological reality. Perhaps there exists some other rational basis for incest norms that does apply equally to same-sex couples. Denniston does not suggest what it might be; he does not even consider the matter.

The terms and conditions of marriage also include the norms governing divorce, and it seems highly unlikely that states can rationally retain the power to grant divorces after Obergefell. Any assertion by a state court of jurisdiction over a divorce proceeding is an assertion that the state has an interest in either keeping the couple married or regulating the terms of their separation. The new purpose of marriage articulated by the Obergefell Court—the conferral of dignity—cannot justify state laws that erect barriers to free exit from marriage. State interests in divorce were historically tied to the well-being of children (by protection of the rights and enforcement of the duties of their biological parents). Recognition of no-fault divorce weakened, but did not destroy, those state interests, because the states retained some power to regulate the dissolution of marriage. On what basis can that power now possibly rest?

If the justification of marriage is now the conferral of dignity upon adult relationships, as Obergefell holds, and if that is a requirement of the Constitution of the United States so that all inconsistent state laws are unconstitutional, and if the Constitution means what the Court says it means, then only those state laws are constitutional that the Court deems consistent with the conferral of dignity, no more and no less. A state judge would be prudent to wait for the federal courts to explain whether and on what basis the Constitution permits state courts to exercise jurisdiction over divorce proceedings.

The Obergefell majority was strikingly uninterested in these questions. Perhaps the five justices assumed that state courts would sort it all out. But on what principles? If it is to be equality and dignity all the way down, as Obergefell suggests, then no part of marriage and family law can remain untouched, or at least unexamined, by equal protection and due process scrutiny.

Do state courts have any assurance that these questions can be resolved with reference to existing state law? Because “marriage” in state law meant natural marriage until just yesterday, the law of most states consists entirely of precedents and statutes that presupposed marriage’s essential nature as a man-woman union. How are state court judges to know which family law issues will be dragged over to federal court and which ones will be left behind? Judge Atherton’s concern is far from unwarranted.

State Law in the Wake of Obergefell

Denniston suggests that such unanswered questions reside somewhere between the Supremacy Clause and the Tenth Amendment. State power has been altered at the margins, but state family courts should still go about their work, he argues. This approach does not resolve the jurisdictional question, and it creates another problem: It makes Obergefell into an unfunded federal mandate greatly expanding the work of state judges. Not only is the number of family law cases now sure to increase, but the complexity of the questions these cases will present to courts is unrivaled.

Congress is prohibited by the anti-commandeering cases from forcing state agencies, without federal funding, to implement federal policy. So why should the Supreme Court be permitted to co-opt state family courts to work out the many implications of this newly announced federal marriage policy?

Consider, by way of contrast, Loving v. Virginia’s impact on state law. Loving’s mandate was, as compared to Obergefell, relatively simple and straightforward. Because race is (in fact) unrelated to the privileges and presumptions associated with marriage, the state courts had little difficulty implementing the federal decision. Loving did not undermine the reasons supporting state interest in marriage and, therefore, did not present numerous novel and complex questions of law.

Judge Atherton’s concern about state court jurisdiction in matters of marriage and divorce is, rightfully, an acknowledgment that Obergefell fundamentally transforms marriage. Marriage once was an institution of great state interest. After Obergefell, marriage is now a federal right—one that must be honored by Kentucky county clerks when demanded by citizens of California. State judges lack jurisdiction, he argues, because it is now clear that the contours of marriage law will not be defined by state (or federal) legislatures but instead by federal judges. Thus, the state judge’s questions regarding his own competence in matters pertaining to federal policy reflects the new normal of marriage law—it is now federal, not state, law.

The Importance of Jurisdiction

Denniston notes that Judge Atherton offered other reasons for his ruling besides jurisdiction—the couple failed to meet the legal standard and committed fraud on the court. He infers from this that the judge questioned his own jurisdiction gratuitously; he must simply “harbor a resentment” that prevents him from accepting the Supreme Court’s redefinition of marriage.

That uncharitable speculation about the judge’s motivations would not pass the lips of a lawyer who has spent time in a trial court. Trial judges do not like being overturned on appeal. In fact, they really, really dislike being overturned on appeal. So, it is not uncommon for trial judges to offer multiple, alternative justifications for their rulings. If the appeals court is not persuaded by one chain of reasoning supporting the trial judge’s holding then it might be persuaded by another, in which case any error in the trial judge’s reasoning is deemed harmless and his holding is affirmed.

Subject-matter jurisdiction—the kind of jurisdiction that Judge Atherton doubts—is a strictly necessary prerequisite to the exercise of judicial power. Therefore, the question whether the court has subject-matter jurisdiction over a case or controversy can and should be raised at any point in the proceedings by anyone, including the judge. If Judge Atherton had failed to examine the jurisdictional basis of the divorce proceeding, he would have been neglecting the duties of his office.

So, Denniston’s assertion that Judge Atherton’s interpretation of Obergefell “is simply wrong” is simply wrong.

The job of a trial judge is difficult. Jurisdiction is complicated, and it is just one of the many considerations that a judge must take into account in any case. Denniston seems unaware that trial judges really want to make correct decisions.

For a trial judge, the jurisdictional implications of a decision as revolutionary as Obergefell are not matters of idle speculation; they are pressing practical questions with grave consequences. To assume that Judge Atherton was playing politics is to assume that he fails to grasp the significance of his job. Perhaps Judge Atherton really is that petty, but we have no reason to believe that. It seems more likely that Lyle Denniston is being incurious.