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Scalia-loving Tennessee judge: Straight couples can’t divorce if same-sex couples can marry

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A local judge in Tennessee has refused to grant a divorce to a straight married couple, citing the U.S. Supreme Court’s legalization of same-sex marriage as one reason he cannot let the man and woman untie the knot.

Hamilton County Chancellor Jeffrey Atherton denied the divorce petition last week, according to The Times Free Press, saying that the Supreme Court decision on same-sex marriage made it impossible for the state of Tennessee to determine what constitutes divorce.

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The Tennessee judge was apparently peeved that the Supreme Court’s decision in Obergefell v. Hodges had overturned the state’s Marriage Protection Amendment, which defined marriage as solely the union between a man and a woman. But he was apparently very fond of Justice Antonin Scalia’s dissent in that ruling.

“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,” Atherton wrote in his decision.

“The majority’s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land, accurately described by Justice Scalia as ‘a naked claim to legislative — indeed, super-legislative — power.'”

“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… [A]ccording to Justice Scalia, the majority opinion in Obergefell represents ‘social transformation without representation.'”

Atherton continued: “Although this Court has some vague familiarity with the government theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, 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.”

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In denying the divorce, the judge also said the marriage between the couple — Thomas Bumgardner, 65, and his wife, Pamela, 61 — was not “irretrievably broken”

Atherton defended his decision Wednesday afternoon but refused to discuss it.

“I don’t want extraneous conversation,” he told The Times Free Press. “I’ll have to stick with the words of the order.”

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Atherton said he was hopeful that the couple would salvage their marriage.


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