                                                                                           05/22/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 8, 2017 Session

       GEORGE GRANT ET AL. v. ELAINE ANDERSON, CLERK OF
                 WILLIAMSON COUNTY ET AL.

               Appeal from the Chancery Court for Williamson County
                     No. 44859 Joseph Woodruff, Chancellor
                      ___________________________________

                           No. M2016-01867-COA-R3-CV
                       ___________________________________


Plaintiffs filed suit seeking declaratory relief to determine the continuing validity of laws
relating to the issuance of marriage licenses and to determine whether the issuance of
marriage licenses violates the state constitution. Plaintiffs also asked the trial court to
enjoin the issuance of all marriage licenses in Williamson County, Tennessee. Upon the
county clerk’s motion to dismiss, the trial court concluded, among other things, that the
plaintiffs lacked standing. We affirm the dismissal of the complaint.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                        as Modified and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

David E. Fowler, Franklin, Tennessee, for the appellants, George Grant, Lyndon Allen,
Tim McCorkle, Larry Tomczak, and Deborah Deaver.

Lisa M. Carson and Lee Ann Thompson, Franklin, Tennessee, for the appellee, Elaine
Anderson, Clerk of Williamson County, Tennessee.


                                        OPINION

                                             I.

     On January 21, 2016, plaintiffs George Grant, Larry Tomczak, Lyndon Allen, Tim
McCorkle, and Deborah Deaver filed a complaint for declaratory judgment in the
Chancery Court for Williamson County. Two months later, the plaintiffs amended their
complaint. The amended complaint for declaratory judgment identified plaintiffs Grant
and Allen as “ministers . . . having the care of souls” and, as such, authorized by state law
to “solemnize the rite of matrimony.” See Tenn. Code Ann. § 36-3-301(a)(1) (2017).
The complaint identified plaintiffs Tomczak, McCorkle, and Deaver as “residents and
taxpayers of Williamson County, Tennessee . . . [who were] registered to vote in
Tennessee,” although Mr. Tomczak was also described as a minister.

        In an introductory paragraph, the plaintiffs concisely stated the declaratory relief
requested. The plaintiffs sought “a declaration that those provisions of the Tennessee law
relative to the licensing of marriages are no longer valid and enforceable” since the
United States Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
The plaintiffs also sought a declaration that “the continued issuance of marriage licenses”
following the Obergefell decision violates their rights under the Tennessee Constitution.
The complaint named as defendants Elaine Anderson, County Clerk for Williamson
County, and Attorney General and Reporter Herbert H. Slatery III.

       Understanding the issues raised by the plaintiffs’ case requires an appreciation of
the issues in Obergefell and the Tennessee case underlying that decision. Obergefell
decided cases arising from four states that “define[d] marriage as a union between one
man and one woman.” Id. at 2593. The Court considered two issues. First, “whether the
Fourteenth Amendment requires a State to license a marriage between two people of the
same sex.” Id. And second, “whether the Fourteenth Amendment requires a State to
recognize a same-sex marriage licensed and performed in a State which does grant that
right.” Id.

      The Tennessee case, Tanco v. Haslam, raised the latter of the two issues. Id. In
Tanco, same-sex couples who lived and were legally married in other states before
moving to Tennessee challenged the constitutionality of article XI, section 18, of the
Tennessee Constitution1 and Tennessee Code Annotated § 36-3-113.2 7 F. Supp. 3d 759,

       1
         Article XI, section 18, of the Tennessee Constitution, which was adopted and ratified in 2006,
provides as follows:

       The historical institution and legal contract solemnizing the relationship of one (1) man
       and one (1) woman shall be the only legally recognized marital contract in this state.
       Any policy or law or judicial interpretation, purporting to define marriage as anything
       other than the historical institution and legal contract between one (1) man and one (1)
       woman, is contrary to the public policy of this state and shall be void and unenforceable
       in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry
       and if such marriage is prohibited in this state by the provisions of this section, then the
       marriage shall be void and unenforceable in this state.

TENN. CONST. art. XI, § 18.
       2
           The statute at issue in Tanco provides as follows:
                                                      2
762 (M.D. Tenn.), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d
sub nom. Obergefell, 135 S. Ct. 2584. Both the constitutional provision and the statute
declared the public policy of this State to be the legal recognition of a marital contract
between one man and one woman only and that any other forms of marriage were “void
and unenforceable” in the State. TENN. CONST. art. XI, § 18; Tenn. Code Ann. § 36-3-
113 (2017).

       In Obergefell, the Supreme Court concluded “that the right to marry is a
fundamental right inherent in the liberty of the person, and under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not
be deprived of that right and that liberty.” Obergefell, 135 S. Ct. at 2604. So the Court
held that “the State laws challenged . . . in these cases are now . . . invalid to the extent
they exclude same-sex couples from civil marriage on the same terms and conditions as
opposite-sex couples.” Id. at 2605. The Court further held “that there is no lawful basis
for a State to refuse to recognize a lawful same-sex marriage performed in another State
on the ground of its same-sex character.” Id. at 2608.

      Here, the plaintiffs seek a declaration that, because of the holdings in Obergefell,
Tennessee Code Annotated § 36-3-103(a) and (c)(1) and § 36-3-104 are invalid and
unenforceable. Section 36-3-103(a) requires parties desiring to marry to first present to
the minister or officer who will solemnize the marriage “a license under the hand of a
county clerk in this state, directed to such minister or officer, authorizing the
solemnization of a marriage between the parties.” Tenn. Code Ann. § 36-3-103(a)
(2017). Subsection (c)(1) of that same section authorizes and directs the county clerk to


                (a) Tennessee’s marriage licensing laws reinforce, carry forward, and make
       explicit the long-standing public policy of this state to recognize the family as essential to
       social and economic order and the common good and as the fundamental building block
       of our society. To that end, it is further the public policy of this state that the historical
       institution and legal contract solemnizing the relationship of one (1) man and one (1)
       woman shall be the only legally recognized marital contract in this state in order to
       provide the unique and exclusive rights and privileges to marriage.

               (b) The legal union in matrimony of only one (1) man and one (1) woman shall
       be the only recognized marriage in this state.

               (c) Any policy, law or judicial interpretation that purports to define marriage as
       anything other than the historical institution and legal contract between one (1) man and
       one (1) woman is contrary to the public policy of Tennessee.

              (d) If another state or foreign jurisdiction issues a license for persons to marry,
       which marriages are prohibited in this state, any such marriage shall be void and
       unenforceable in this state.

Tenn. Code Ann. § 36-3-113 (2017).
                                                     3
take certain actions following the marriage and receipt of the license executed by the
officiant:

       The county clerk issuing a marriage license is hereby authorized to record
       and certify any license used to solemnize a marriage that is properly signed
       by the officiant when such license is returned to the issuing county clerk.
       The issuing county clerk shall forward the record to the office of vital
       records to be filed and registered with such office. If a license issued by a
       county clerk in Tennessee is used to solemnize a marriage outside
       Tennessee, such marriage and parties, their property and their children shall
       have the same status as if the marriage were solemnized in this state. A
       county clerk is prohibited from issuing a license for a marriage that is
       prohibited in this state.

Id. § 36-3-103(c)(1). Section 36-3-104 details the requirements for a marriage license
application. Among other things, the application must state “the names, ages, addresses
and social security numbers of both the proposed male and female contracting parties.”
Id. § 36-3-104(a)(1) (2017). The section also prohibits a county clerk or deputy clerk
from issuing a marriage license until a written application containing all the required
information is submitted. Id.

       Plaintiffs also claim that, post-Obergefell, certain criminal penalties no longer
apply. Specifically, plaintiffs point to the penalties that result from an officiant’s failure
to return a marriage license to the county clerk or from an officiant solemnizing a
marriage between parties not capable of marriage. See id. §§ 36-3-303, -305 (2017).

       Plaintiffs acknowledge that neither Tennessee Code Annotated § 36-3-103 nor
§ 36-3-104 were at issue in Tanco. And plaintiffs further acknowledge “that Obergefell
never purported to ‘interpret’ the [Tennessee] license laws.” Still, plaintiffs argue that
the holdings in Obergefell serve to either invalidate Tennessee’s marriage licensing laws
or create an uncertainty, namely “how the right of same-sex couples to marry . . . is to be
effectuated.”

       In response to the amended complaint for declaratory judgment, the court clerk,
defendant Anderson, moved to dismiss the complaint. As grounds, she cited Rule
12.02(1) and (6) of the Tennessee Rules of Civil Procedure, “lack of jurisdiction over the
subject matter” and “failure to state a claim upon which relief can be granted.” See Tenn.
R. Civ. P. 12.02. Although she raised the issue of the court’s subject matter jurisdiction,
her motion instead focused on justiciability. According to Ms. Anderson, plaintiffs
“failed to present a justiciable case or controversy for the following reasons: (1) Plaintiffs
cannot establish standing . . . ; (2) Minister Plaintiffs’ claims are not ripe for adjudication;
and (3) [she] d[id] not have a real and adverse interest sufficient to establish a legal
controversy.”
                                                4
                                             II.

        The chancery court dismissed the action. The court first held that the plaintiffs
lacked standing, concluding that they failed to “aver a special interest or a special injury
not common to the public generally.” In reaching its conclusion, the court examined the
claims of the plaintiffs not only as a whole but also by category, independently analyzing
the allegations of the “Minister Plaintiffs” and the “Citizen Plaintiffs.”

       As an independent basis for dismissal of the claims of the Minister Plaintiffs, the
court also determined the ministers’ claims were not ripe. In its view, the Minister
Plaintiffs were “not faced with a choice of immediately complying with a burdensome
law or risking serious criminal and civil penalties.” And the court saw “no need for
immediate compliance or immediate action of any sort since Minister Plaintiffs [we]re
not being compelled to solemnize any upcoming marriages, and may never be asked to
solemnize a state-issued license again.”

       The court also agreed with Ms. Anderson’s contention that she did not have an
adverse interest to the plaintiffs. Although state law prohibits county clerks “from
issuing a marriage license for a marriage that is prohibited [by the laws of the state],” the
penalty for violation applies only if the violation was “not in good faith.” Tenn. Code
Ann. §§ 36-3-103(c)(1), -111 (2017). As noted by the court, in their response to the
motion to dismiss, plaintiffs acknowledged that Ms. Anderson was issuing licenses to
same-sex couples on the good faith assumption that Obergefell both authorized and
required the issuance of marriage licenses to same-sex couples.

       Finally, although the Attorney General did not file a motion to dismiss, the court
determined that dismissal of the entire action was appropriate. The court reasoned that
“Tennessee’s Constitution restricts the cases a court may entertain to those in which the
parties have standing, [and] therefore, without standing, a court has no subject matter
jurisdiction.” From that premise and noting its holding that the plaintiffs lacked standing,
the court concluded it “[wa]s required to dismiss this action against both the Attorney
General as well as Ms. Anderson because this Court does not have subject matter
jurisdiction.”

                                            III.

       As an initial matter, we must determine whether the chancery court had subject
matter jurisdiction over the plaintiffs’ claims. See Redwing v. Catholic Bishop for
Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012) (noting that subject matter
jurisdiction “should be viewed as a threshold inquiry”). Subject matter jurisdiction refers
to a court’s “lawful authority to adjudicate a controversy brought before it.” Northland
Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). A court’s subject matter jurisdiction
                                             5
is derived—“either explicitly or by necessary implication”—from the state constitution or
statute. Benson v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007). Neither the
conduct of the parties nor any agreement of the parties plays a role; “parties cannot
confer subject matter jurisdiction on a trial . . . court by appearance, plea, consent,
silence, or waiver.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct.
App. 1999).

       The existence of subject matter jurisdiction depends on “the nature of the cause of
action and the relief sought.” Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). If
subject matter jurisdiction is lacking, the court must dismiss the case. Dishmon, 15
S.W.3d at 480. Whether a court lacks subject matter jurisdiction presents a question of
law, which we review de novo. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712-13
(Tenn. 2012).

        Although our supreme court has stated that “[w]hen a statute creates a cause of
action and designates who may bring an action, the issue of standing is interwoven with
that of subject matter jurisdiction and becomes a jurisdictional prerequisite,” Osborn v.
Marr, 127 S.W.3d 737, 740 (Tenn. 2004), that is not the case here. Subject matter
jurisdiction and standing are “two distinct concepts.” SunTrust Bank, Nashville v.
Johnson, 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000). The court’s conclusion that the
plaintiffs lacked standing did not compel the conclusion that it also lacked subject matter
jurisdiction.

        We conclude that the chancery court did have subject matter jurisdiction. In this
instance, subject matter jurisdiction is derived from the Tennessee Declaratory Judgments
Act.3 Under the Act, “[c]ourts of record within their respective jurisdictions have the
power to declare rights, status, and other legal relations whether or not further relief is or
could be claimed.” Tenn. Code Ann. § 29-14-102(a) (2012). The chancery court is a
court of record, and the plaintiffs are seeking a declaration of their respective rights. So
we next consider whether the plaintiffs had standing to seek declaratory or injunctive
relief.

                                              IV.

       Lack of standing may be raised as a defense under Rule 12.02(6) of the Tennessee
Rules of Civil Procedure. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976).
A Rule 12.02(6) motion, also known as a motion to dismiss for failure to state a claim
upon which relief can be granted, “challenges only the legal sufficiency of the complaint,
not the strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). Thus, “[t]he resolution of a 12.02(6)

       3
        The enactment provided that it could “be cited as the Uniform Declaratory Judgments Act.”
1923 Tenn. Pub. Acts 104.
                                               6
motion to dismiss is determined by an examination of the pleadings alone.” Id. By filing
a motion to dismiss, the defendant “admits the truth of all of the relevant and material
allegations contained in the complaint, but . . . asserts that the allegations fail to establish
a cause of action.” Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004); see also Webb, 346
S.W.3d at 426; Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010);
Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005). When
a complaint is challenged by a Rule 12.02(6) motion, the complaint should not be
dismissed unless it appears that the plaintiff can prove no set of facts in support of his or
her claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999)
(citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination
is a question of law. Our review of a trial court’s determinations on issues of law is de
novo, with no presumption of correctness. Id. (citing Stein v. Davidson Hotel Co., 945
S.W.2d 714, 716 (Tenn. 1997)).

        In contrast to subject matter jurisdiction, standing is a judicially created doctrine
that asks whether a party advancing a claim is “properly situated to prosecute the action.”
Knierim, 542 S.W.2d at 808. Courts “may and properly should refuse to entertain an
action at the instance of one whose rights have not been invaded or infringed.” Mayhew
v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001) (quoting 59 AM. JUR. 2D Parties §
30 (1987)). Standing limitations also restrict judicial power by keeping courts from
deciding “abstract questions of wide public significance even though other governmental
institutions may be more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights.” Warth v. Seldin, 422 U.S.
490, 500 (1975).

       A standing analysis focuses on the party, rather than the merits of the claim.
Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville & Davidson Cty.,
842 S.W.2d 611, 615 (Tenn. Ct. App. 1992). Even so, the standing inquiry “often turns
on the nature and source of the claim asserted.” Id.

        Under the Tennessee Declaratory Judgments Act, persons affected by a state
statute have standing to request a declaration of their rights under a statute. In pertinent
part, the Act provides as follows:

       [a]ny person . . . whose rights, status, or other legal relations are affected by
       a statute . . . may have determined any question of construction or validity
       arising under the . . . statute . . . and obtain a declaration of rights, status or
       other legal relations thereunder.

Tenn. Code Ann. § 29-14-103 (2012). Still “some real interest must be in dispute.”
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008) (citing Goetz v.
Smith, 278 S.W. 417, 418 (Tenn. 1925)). To establish standing under the Act, “the
person seeking a declaratory judgment must allege facts which show he has a real, as
                                        7
contrasted with a theoretical, interest in the question to be decided and that he is seeking
to vindicate an existing right under presently existing facts.” Burkett v. Ashley, 535
S.W.2d 332, 333 (Tenn. 1976).

                                            A.

       Here, the source of the plaintiffs’ claims is the Supreme Court’s decision in
Obergefell. In their amended complaint for declaratory judgment, the plaintiffs identify
eight controversies that exist due to Obergefell. The first five of the controversies are
premised on the notion that Tennessee statutes relating to marriage license applications,
requiring marriage licenses, and specifying certain duties of the county clerk with respect
to such licenses are invalid and unenforceable. See Tenn. Code Ann. §§ 36-3-103(a), -
103(c)(1), -104.

        We can quickly dispel this notion by looking to Obergefell. The Supreme Court
held that “the State laws challenged by Petitioners in these cases are now held invalid to
the extent they exclude same-sex couples from civil marriage on the same terms and
conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605. This holding states
that it applies to “the State laws challenged by Petitioners.” Id. And plaintiffs have
acknowledged that the laws challenged in Obergefell did not include the Tennessee
statutes that the plaintiffs now assert are invalid and unenforceable. So the plaintiffs’
alleged interest is based on a contingency, invalidation of all of Tennessee’s marriage
licensing laws, that may never occur. Even in the context of declaratory judgment
actions, “[i]t is well settled” that our courts decline to answer such questions. Story v.
Walker, 404 S.W.2d 803, 804 (Tenn. 1966); see also 26 C.J.S. Declaratory Judgments
§ 31, Westlaw (database updated Mar. 2018) (“The courts do not issue advisory opinions
or answer hypothetical questions where there is no case or controversy, and this rule does
not change when a declaratory judgment is involved . . . .”).

       Perhaps more importantly, to the extent Tennessee statutes other than those
challenged in Tanco v. Haslam are implicated, they are solely implicated “to the extent
they exclude same-sex couples from civil marriage on the same terms and conditions as
opposite-sex couples.” Obergefell, 135 S. Ct. at 2605. To create their first five
controversies, the plaintiffs would have us read the words “to the extent they exclude”
out of the opinion. Even the dissenters in Obergefell would not claim that the decision
wiped away marriage licensing laws.

       In his dissent, Chief Justice John Roberts complained that the ruling in Obergefell
“invalidate[d] the marriage laws of more than half the States and orders the
transformation of a social institution that has formed the basis of human society for
millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the
Aztecs.” Id. at 2612 (Roberts, C.J., dissenting). But he still recognized that the Court
was “ordering every State to license . . . same-sex marriage.” Id. at 2611 (emphasis
                                            8
added). And he accused the Court of taking a “drastic step,” namely “requiring every
State to license and recognize marriage between same-sex couples.” Id. at 2623-24
(emphasis added).

        Justice Clarence Thomas, in his dissent, states “[t]he majority’s decision today
will require States to issue marriage licenses to same-sex couples.” Id. at 2631 (Thomas,
J., dissenting) (emphasis added). And Justice Samuel Alito explains in his dissent that
the use of the term “recognize marriage” is “shorthand for issuing marriage licenses and
conferring those special benefits and obligations provided under state law for married
persons.” Id. at 2640 n.1 (Alito, J., dissenting) (emphasis added). These references to the
issuance of marriage licenses would be out of place had Obergefell, as plaintiffs claim,
invalidated Tennessee’s marriage license laws.

        Invalidation of our license laws also would be an unusual step. The Supreme
Court generally favors limited remedies “when confronting a constitutional flaw in a
statute.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006). In
such circumstances, the remedy is informed by three interrelated principles, which take
into account separation of powers and the proper roles of the legislative and judicial
branches. Id. at 329. As the Court explained in Ayotte v. Planned Parenthood of
Northern New England:

       [f]irst, we try not to nullify more of a legislature’s work than is necessary,
       for we know that “[a] ruling of unconstitutionality frustrates the intent of
       the elected representatives of the people.” It is axiomatic that a “statute
       may be invalid as applied to one state of facts and yet valid as applied to
       another.” Accordingly, the “normal rule” is that “partial, rather than facial,
       invalidation is the required course,” such that a “statute may . . . be declared
       invalid to the extent that it reaches too far, but otherwise left intact.”

               Second, mindful that our constitutional mandate and institutional
       competence are limited, we restrain ourselves from “rewrit[ing] state law to
       conform it to constitutional requirements” even as we strive to salvage it.
       Our ability to devise a judicial remedy that does not entail quintessentially
       legislative work often depends on how clearly we have already articulated
       the background constitutional rules at issue and how easily we can
       articulate the remedy. . . .

               Third, the touchstone for any decision about remedy is legislative
       intent, for a court cannot “use its remedial powers to circumvent the intent
       of the legislature.” After finding an application or portion of a statute
       unconstitutional, we must next ask: Would the legislature have preferred
       what is left of its statute to no statute at all?

                                              9
Id. at 329-30 (citations omitted). In Tennessee, the legislative intent is clear. Our
Legislature has expressed its preference that the invalidity of one portion of a statute
should not affect the remaining portions of the statute. See Tenn. Code Ann. § 1-3-110
(2014).4

                                                    B.

       The last three of the eight controversies identified in the amended complaint for
declaratory judgment stem from “the issuance of marriage licenses without a statute by
the General Assembly prescribing the duties of the [county clerk].” These alleged
controversies do not arise solely from the mistaken notion that Tennessee’s marriage
license laws were totally invalidated by Obergefell and are now unenforceable.
According to the plaintiffs, if our marriage license laws “remain valid, then Obergefell
failed to tell us how the right of same-sex couples to marry . . . is to be effectuated.”
This, the plaintiffs assert, creates an uncertainty. To address this claimed uncertainty, we
consider the plaintiffs in each of their alleged roles.

1. The Minister Plaintiffs

       The Minister Plaintiffs, in their roles as ministers, do not have standing. To the
extent their uncertainty arises from licensing of same-sex marriage, they have no real
interest for purposes of standing. On appeal, the Minister Plaintiffs claimed to have
“alleged that they would continue to solemnize opposite-sex marriages in the future.”
And our review of the amended complaint shows no factual allegation that the Minister
Plaintiffs have or intend to solemnize same-sex marriages.

       To the extent their uncertainty arises from opposite-sex marriages, we still
conclude that the Minister Plaintiffs lack standing. Declaratory relief may be granted
with respect to a penal or criminal statute. See Erwin Billiard Parlor v. Buckner, 300
S.W. 565, 566 (Tenn. 1927) (holding that pool room proprietors could seek declaratory
judgment that act declaring the operation of pool and billiard rooms for pay and profit
was unconstitutional); see also W. E. Shipley, Annotation, Validity, Construction, and
Application of Criminal Statutes or Ordinances as Proper Subject for Declaratory
Judgment, 10 A.L.R.3d 727, § 2 (1966) (“[I]t now seems reasonably well settled that in
an otherwise proper case declaratory relief may be granted notwithstanding the fact that
the declaration is as to the validity or construction of a statute having criminal or penal
provisions . . . .”). And the Minister Plaintiffs have challenged the validity of statutes
        4
          The Legislature has also acted in accord with its preference. Just this year the Legislature
adopted a bill to amend Tennessee’s marriage license laws relative to the minimum age for marriage,
making it unlawful for a county clerk to issue a marriage license when “[e]ither of the contracting parties
is under seventeen (17) years of age.” H.R. 2134, § 3, 110th Gen. Assemb., Reg. Sess. (Tenn. 2018).
How can this be, if as plaintiffs claim, the requirement for the issuance of a marriage license has been
completely invalidated? The answer is that it cannot.
                                                    10
making it a misdemeanor for an officiant to fail to return a marriage license to the county
clerk and making it a misdemeanor and imposing a fine of $500 for solemnizing a
marriage between parties not capable of marriage. See Tenn. Code Ann. §§ 36-3-303, -
305. But their challenge stems from a hypothetical scenario: that there are “no valid
marriage license[s] by which Minister Plaintiffs are authorized to solemnize th[e]
marriage[s].”

2. The Citizen Plaintiffs

     The Citizen Plaintiffs claim that “rights accorded them under the Tennessee
Constitution are being violated by the issuance of marriage licenses after Obergefell.”
Specifically, the Citizen Plaintiffs claim that their rights under article I, sections 5, 8, and
23; article II, section 17; and article VII, section 1, have been violated. We must
determine then whether issuance of marriage licenses by the county clerk after Obergefell
invades or infringes on any of the rights under the cited constitutional provisions. The
claimed constitutional violations or infringements are grouped into three separate
allegations or “controversies.”

       First, the Citizen Plaintiffs claim deprivation of their rights under article I, section
5 and 8, of our constitution. Article I, section 5, provides for free and equal elections and
guarantees that “the right of suffrage . . . shall never be denied to any person entitled
thereto, except upon conviction by a jury of some infamous crime, previously ascertained
and declared by law, and judgment thereon by court of competent jurisdiction.” TENN.
CONST. art. I, § 5. Section 8 guarantees “[t]hat no man shall be taken or imprisoned, or
disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.” Id. art. I, § 8.

        The Citizen Plaintiffs contend that “they have been deprived of their right to
‘indirectly vote’ on the laws prescribing the duties of the County Clerk” through their
state representatives and senators. No factual allegations support this claim. On appeal,
the Citizen Plaintiffs claim that the county clerk “has unconstitutionally taken it upon
herself to decide, without the legislative definition of her authority required under the
Tennessee Constitution, what should be done in view of Obergefell.” According to the
Citizen Plaintiffs, the county clerk “essentially rewrote or adjudicated the existing statute
by herself and prescribed to herself a duty not existing in the current statute.”

        Even if, in carrying out her responsibilities, the county clerk had rewritten the
marriage license laws or prescribed duties to herself not existing in the marriage license
statutes, the Citizen Plaintiffs did not allege how such actions would invade or infringe
upon their voting rights or deprive them of their life, liberty, or property. None of the
Citizen Plaintiffs alleged that they were denied a marriage license; instead, they complain
of the issuance of marriage license to others.
                                              11
        Second, the Citizen Plaintiffs claim that the county clerk’s actions violate article
II, section 17, of our constitution. Article II, section 17, as codified in Tennessee Code
Annotated, is entitled “Origin and frame of bills.” The title summarizes succinctly the
section’s purpose. As our supreme court explained,

       So far as section 17, article 2, is concerned, if the various provisions of an
       act are directed toward a common purpose, and that purpose is expressed in
       the title, it would make no difference if the several provisions of the act
       involved all powers of the Legislature. This section of the Constitution
       regulates the syntax of statutes. It imposes no restriction upon the powers
       exerted, nor upon the commingling of such powers, so long as the
       provisions of the statute are not incongruous and are germane to the subject
       expressed in the caption.

Davis v. Hailey, 227 S.W. 1021, 1022 (Tenn. 1921). The Citizen Plaintiffs contend that,
if the county clerk’s “actions exceed the authority that she legally possesses after
Obergefell, then Citizen Plaintiff’s [sic] constitutional rights under Article II, Section 17
have been violated.”

       We disagree. The Citizen Plaintiffs misread article II, section 17. Section 17 has
nothing to do with the duties or responsibilities of the county clerk or the issuance of
marriage licenses; the section has everything to do with the requirements for bills
introduced in the Legislature, which are not at issue here.

       Finally, the Citizen Plaintiffs claim their rights under article I, section 23, and
article VII, section 1, have been rendered “meaningless.” Article I, section 23,
guarantees citizens the “right, in a peaceable manner, to assemble together for their
common good, to instruct their representatives, and to apply to those invested with the
powers of government for redress of grievances, or other proper purposes, by address or
remonstrance.” TENN. CONST. art. I, § 23. Article VII, section 1, provides, among other
things, for the election of a county clerk and that the county clerk’s “duties shall be
prescribed by the General Assembly.” Id. art. VII, § 1.

       The Citizen Plaintiffs complain that their right to instruct their representatives
would be meaningless if the county clerk is “allowed to continue exercising an authority
and fulfilling a duty that has not been prescribed to her either by the legislature or
‘created’ by a final appellate adjudication of how Obergefell affected Tenn. Code Ann.
[§] 36-3-104(a).” As discussed above, Tennessee Code Annotated § 36-3-104(a)(1)
specifies the requirements for a marriage license application and prohibits a county clerk
from issuing a marriage license until an application meeting the requirement has been
submitted. Tenn. Code Ann. § 36-3-104(a)(1).

                                             12
        If the county clerk is exercising an authority or fulfilling a duty that has not been
statutorily prescribed for her, we fail to see how that renders meaningless the Citizen
Plaintiffs’ “right . . . to instruct their representatives.” And it is beyond question that our
Legislature retains the constitutional authority to prescribe the duties of the county clerk.
In claiming an injury or harm resulting from the county clerk’s actions, the Citizen
Plaintiffs also seem to ignore that they have a very meaningful say in how the county
clerk fulfills her duties. The Citizen Plaintiffs, assuming they remain qualified voters,
elect a county clerk every four years. TENN. CONST. art. VII, § 1.

       Further, even assuming for the sake of argument that their rights under any of the
cited constitutional provisions have been invaded or infringed to a degree, the Citizen
Plaintiffs’ injuries would be shared by the public at large. “Standing . . . may not be
predicated upon an injury to an interest that the plaintiff shares in common with all other
citizens.” Am. Civil Liberties Union of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn.
2006); Mayhew, 46 S.W.3d at 767. Thus, without a particularized injury or harm arising
from the county clerk’s actions, the Citizen Plaintiffs lack standing. See City of
Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001).

       In a filing of supplemental authority after oral arguments in this case, the Citizen
Plaintiffs suggest that the Legislature recently relaxed the particularized injury
requirement in these circumstances. Heretofore, “the courts of this state have yet to
recognize a general ‘public rights’ exception to the standing requirement.” Id. The
enactment referenced by the Citizen Plaintiffs added a new section to the chapter of the
Tennessee Code addressing statutory construction. The section, which took effect upon
becoming law, provides as follows: “Notwithstanding any law to the contrary, a cause of
action shall exist under this chapter for any affected person who seeks declaratory or
injunctive relief in any action brought regarding the legality or constitutionality of a
governmental action.” Act of Apr. 2, 2018, ch. 621, 2018 Tenn. Pub. Acts. (codified at
Tenn. Code Ann. § 1-3-121).

       When a statute designates who may bring an action, “his or her right of action
arises directly out of the statute, and he or she needs no title under the substantive law to
authorize suit.” Mayhew, 46 S.W.3d at 768-69 (quoting 59 AM. JUR. 2D Parties § 22
(1987)). Our reading of the new statute is that it does not relax the particularized injury
requirement for standing in cases “brought regarding the legality or constitutionality of a
governmental action.” Unlike, for example, the Tennessee Public Meetings Act, which
permits “any citizen of the state” to seek relief, Tenn. Code Ann. § 8-44-106(a) (2016),
the new statute applies to “any affected person.” Act of Apr. 2, 2018, ch. 621, 2018
Tenn. Pub. Acts. (codified at Tenn. Code Ann. § 1-3-121). The language of the new
statute is sufficiently similar to the standing provision of the Tennessee Declaratory
Judgments Act, which grants standing to “[a]ny person . . . whose rights, status, or other
legal relations are affected by a statute.” Tenn. Code Ann. § 29-14-103. As such, we
conclude that the new statute retains a particularized injury requirement.
                                              13
                                            V.

       In addition to determining that the plaintiffs lacked standing, the chancery court
also determined that the plaintiffs’ claims were not ripe and that the county clerk did not
have an adverse interest to the plaintiffs. To be ripe, “the dispute [must] ha[ve] matured
to the point that it warrants a judicial decision.” B & B Enters. of Wilson Cty., LLC v.
City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010). To some extent, the ripeness
doctrine overlaps with the injury requirement for standing. Erwin Chemerinsky, A
Unified Approach to Justiciability, 22 CONN. L. REV. 677, 682 (1990). Beyond the
existence of a controversy with sufficient immediacy and reality to warrant the
declaratory judgment action, there must also be “some one having a real interest in the
question who may oppose the declaration sought.” Miller v. Miller, 261 S.W. 965, 972
(Tenn. 1924); Hatcher v. Chairman, 341 S.W.3d 258, 261 (Tenn. Ct. App. 2009); 26
C.J.S. Declaratory Judgments § 30.

        In light of our conclusion that the allegations of the amended complaint for
declaratory judgment did not establish the plaintiffs’ standing and the overlap between
the doctrines of standing and ripeness, we find it unnecessary to address whether the
plaintiffs’ claims were also ripe for judicial determination. We decline to address the
question of whether the county clerk possessed a real interest sufficient to oppose
declaratory relief.

                                           VI.

       Although we have determined that the chancery court properly dismissed the
claims of the plaintiffs for lack of standing upon the motion for the county clerk, there
remains one party defendant. The plaintiffs also named the Attorney General of the State
as a party under Tennessee Code Annotated § 29-14-107(a). That statute requires a party
seeking declaratory relief to name as parties “all persons . . . who have or claim any
interest which would be affected by the declaration.” Tenn. Code Ann. § 29-14-107(a)
(2012). But because the plaintiffs were challenging the issuance of marriage licenses by
the county clerk and not necessarily seeking to test the constitutionality of Tennessee’s
marriage license laws, it does not appear that the Attorney General was a necessary party
to this action. See Shelby Cty. Bd. of Comm’rs v. Shelby Cty. Quarterly Court, 392
S.W.2d 935, 940 (Tenn. 1965).

       Generally, we confine ourselves only to the issues raised by the parties. Hodge v.
Craig, 382 S.W.3d 325, 334 (Tenn. 2012); Tenn. R. App. P. 13(b). We do so because
party control over issue presentation is one of the defining characteristics of the
American adversarial system. See U.S. v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,
concurring). Still courts may sometimes engage in a sua sponte review of issues not
raised by the parties on appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106, 121 (1976);
                                            14
Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Conn., 84 A.3d 840, 855-69
(Conn. 2014); Bell v. Todd, 206 S.W.3d 86, 90-91 (Tenn. Ct. App. 2005); Heatherly v.
Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000). For example,
our courts have considered justiciability issues even when parties have not presented such
issues for review. See, e.g., Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014)
(mootness); Osborn, 127 S.W.3d at 740 (standing).

       Although the Attorney General did not move for dismissal, we conclude it is
appropriate to also dismiss any claims against the Attorney General based on standing.
See Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975) (approving but not
encouraging dismissal for failure to state a claim in the absence of a motion to dismiss
under Tennessee Rule of Civil Procedure 12). The standing analysis would be no
different if the Attorney General had also moved to dismiss for failure to state a claim
upon which relief can be granted. And the result would be the same.

                                          VII.

      We conclude that the chancery court had subject matter jurisdiction over the
proceeding. But because we conclude that the plaintiffs lacked standing, we affirm the
dismissal of the complaint. The case is remanded for any further proceedings as are
necessary and consistent with this opinion.


                                                 _________________________________
                                                 W. NEAL MCBRAYER, JUDGE




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