Meet Hamilton County (Tennessee) Chancellor Jeffrey Atherton, a local judge who is throwing a high-profile tantrum to show that he doesn’t agree with the U. S. Supreme Court’s same-sex marriage decision. Atherton denied a divorce petition last week, but not really because of the case at hand.. After hearing from seven witnesses and going through 77 exhibits, he rejected the requested divorce by Thomas Bumgardner and his wife, Pamela, stating that the Supreme Court’s ruling declaring gay marriages a right destroyed Tennessee’s ability to determine what constitutes marriage or divorce.
No, it doesn’t make sense.
Atherton said the Supreme Court must clarify “when a marriage is no longer a marriage” and until it does, Tennessee courts are unable to handle marriage and divorce litigation. “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,” Atherton wrote.
Or the short version: “I am an asshole with power!”
This is unfair to all couples who won’t be able to get on with their lives until the judge is forced to do his job or removed from the bench. The judge is using the sham of a legal opinion to mask what is pure political grandstanding, though he is not fooling anyone.
Penny White, a former member of the Tennessee Supreme Court and now a professor at the University of Tennessee College of Law, says the judge doesn’t have a judicial leg to stand on. “State court judges, regardless of their personal points of view, must defer to the Supreme Court’s constitutional interpretation.”
Well, yes, that’s the idea. Unfortunately, unethical, law-flaunting judges are even harder to get rid of than unethical, law-flaunting law clerks.
However, when they are ready to discipline this jerk-in-a-robe, these are the provisions of the Tennessee Code of Judicial Conduct that judge Atherton has nicked, breached or is simply pretending don’t exist:
RULE 1.1 Compliance with the LawA judge shall comply with the law, including the Code of Judicial Conduct.RULE 1.2 Promoting Confidence in the JudiciaryA judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
RULE 1.3 Avoiding Abuse of the Prestige of Judicial OfficeA judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.
RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.
RULE 2.3 Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
Rule 2.5 Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties competently, promptly and diligently.
Rule 2.7 Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is required by RJC 2.11 or other law.
Rule 2.11 Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.
Addendum: More from the judge’s opinion:
“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.’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.”
“Limp wrist,” eh? Sure, no bigotry there, just dispassionate, objective legal analysis!
Says Ann Althouse: “If following Supreme Court precedent is too much of a “challenge” for you, resign.”