Tennessee Judge Won’t Divorce Straight Couple Because of Gay Marriage

A state judge in Tennessee has refused to allow the divorce of a straight couple, saying that the Supreme Court effectively declared the American people incompetent of deciding the law when they the Court legalized same-sex marriage.

Hamilton County chancellor Jeffrey Atherton last week denied Thomas Bumgardner, 65, and his wife, Pamela, 61, a divorce, citing multiple reasons for this and chiefly deciding that their marriage is not “irretrievably broken” and might be salvaged–which of itself is a worrying projection of Atherton’s own personal rather than legal opinions. However, one reason that is raising eyebrows is his contention that the Supreme Court’s June ruling in Obergefell has rendered the American people unable to say what constitutes a viable marriage, much less a divorce, and that it is now up to the Supreme Court to decide what marriages can be dissolved.

Says Atherton in the order:

With the US 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 US Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage.  The conclusion reached by this Court is that Tennesseans have been deemed by the US Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces.

Legal professionals are said to be thrown by this refusal. It is unusual to deny a divorce in cases like this, even if the divorce contains contested facts–one party claims infidelity while the other denies this charge, though both want a divorce due to irreconcilable differences. However, to deny a divorce to make a political statement is quite something else. Some have reportedly questioned whether Atherton’s refusal is even legal, though others are of the opinion that as this was not the sole factor in his dismissal, while going beyond the normal bounds of disagreement, it was within his power. Nearly all seem to agree that the politicking from the bench is indiscreet and possibly detrimental to the process of law.

State Supreme Court Justice Penny White, now a professor at the University of Tennessee College of Law, is quoted as saying very bluntly that regardless of Atherton’s opinions, “State court judges, regardless of their personal points of view, must defer to the Supreme Court’s constitutional interpretation.”

Some commentators have said that what this amounts to is Atherton taking the couple in this case hostage in order to grandstand. They are calling for the legislature to remove the judge from the bench because, they say, he has demonstrated contempt for the law. The Republican-controlled Tennessee legislature appears unlikely to remove Atherton, and so this may set an unwelcome precedent–not a legally binding one, but one that might encourage other officials to act out against marriage equality.

Ultimately this case is unlikely to have wide-reaching ramifications though. However, what it does speak to is the way that religious conservatives unhappy with the Supreme Court ruling have been able to create doubt and generally attempt to de-legitimize the ruling that effectively legalized marriage equality across the United States. For same-sex couples in Tennessee, like elsewhere, this makes an already nervy situation that much more fraught.

In the wake of the Supreme Court ruling, what would have been appropriate would have been for state legislatures to pass bills reinforcing that, while private beliefs must of course be protected, elected officials whatever their capacity must adhere to the law when it comes to marriage equality. This wouldn’t have precluded Atherton offering up his opinions, but it would have given same-sex couples some added security. Unfortunately, that appears unlikely at both the state and federal level at the moment. As a result, we get cases like this and those of county clerks refusing to serve same-sex couples, all with the outcome of putting yet more pressure on same-sex couples, and now straight couples, too.

In the meantime, Thomas and Pamela Bumgardner can re-file their divorce proceedings and cite a different basis for separation. Atherton has indicated his desire for the couple to reconcile, though has agreed that the couple is entitled to refile if they should so choose. Here’s hoping that Atherton’s rather tantrum-like behavior over same-sex marriage rights is now over.

Photo credit: Thinkstock.

123 comments

Siyus Copetallus
Siyus Copetallus1 years ago

Thank you for sharing.

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Jennifer H.
Jennifer H1 years ago

What a screwed up mess.

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Paulinha Russell
Paulinha Russell2 years ago

Thank you

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sharon b.
sharon b2 years ago

Omg just omg

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Victoria Fellner
Victoria Fellner2 years ago

Stephanie L, I would give you 1000 stars if I could.

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Victoria Fellner
Victoria Fellner2 years ago

Helga, I know where you are coming from. I also had endometriosis and it's very painful every month. My doctor also gave me birth control pills and this was in 1965. I never had a pharmacist not fill my prescription. I don't remember how much my pills were but they were never that high. Even after I stopped taking the pill it took me to give birth in 1975 to finally not get it anymore. Now I'm 70 and I'm so glad to out of having that monthly flow.

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Holly Potthoff
Holly Potthoff2 years ago

It seems that everyone who doesn't agree with marriage equality has to nitpick, throw a fit, or just generally cause problems. This judge needs to grow up!

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Mitchell D.
Mitchell D2 years ago

Sounds like this fellow is grandstanding, and spouting bullshit in his unhappiness with the SCOTUS ruling on same se marriage!

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Cyan Dickirs
Cyan Dickirs2 years ago

The article states "Nearly all seem to agree that the politicking from the bench is indiscreet and possibly detrimental to the process of law."
That is EXACTly what SCOTUS and the judge in the Davis case did, under the guise of obeying SCOTUS, Yet, before the SCOTUS decision, many clerks and judges refused to obey the state laws and illegally issued ssm licenses, but did not get punished.
What is good for the goose is good for the gander. This judge exercised his authority under the law, which no longer exists concerning marriage. SCOTUS did NOT make law. There is NO state or federal law governing marriage and therefore its dissolution. SCOTUS left a lot of questions open. We are no longer a nation of laws. SCOTUS created tyranny by judiciary.

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Marie W.
Marie W2 years ago

The Southern States have all gone wacko.

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