When Thomas and Pamela Bumgardner decided to get divorced, they likely assumed the process would be straightforward. The Tennessee sexagenarians have no children and provided no reason why Chancery Court Judge Jeffrey Atherton shouldn’t grant their request. Yet Atherton ordered four days of testimony from the couple—then held that their marriage wasn’t “irrevocably broken” and denied their divorce. His justification?
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.
The high court, Atherton concluded, must explain “when a marriage is no longer a marriage.” Until then, he contended, state courts cannot decide marriage and divorce cases.
Obviously, this is a stunt—and a childish, dishonorable one at that. By using his esteemed position to protest binding Supreme Court precedent—from the bench!—Atherton is violating two basic components of his job. First, he is (rather cruelly) refusing to allow the Bumgardners’ divorce for no good cause other than his own political chagrin. Second, he is implicitly rejecting the Supreme Court’s ruling in Obergefell v. Hodges, using it as an excuse not to perform those duties that he is required, by law, to perform.
It may come as no surprise that Atherton secured his judgeship through election, supports homeschooling, and works as a Baptist deacon in his spare time. But many right-wing judges are capable of following the rule of law while personally objecting to the precedent they must follow. Judges can, in keeping with judicial decorum, imply that the Supreme Court should reconsider a past decision. But Atherton has gone far beyond the limit of his position, not only protesting Obergefell by halting his judicial duties but also to taking a blameless couple hostage in the process. He has, in short, proved himself unfit for the bench. The Tennessee legislature can impeach and remove Atherton during its upcoming legislative session. It should do so as soon as possible.