Gov. Bill Haslam issued a statement Friday pledging that state government departments “will comply…as quickly as possible” with a U.S. Supreme Court ruling that appears to nullify a “marriage protection amendment” added to the Tennessee Constitution a decade ago.
“The people of Tennessee have recently voted clearly on this issue,” Haslam said of the same-sex marriage ban voters overwhelmingly ratified in 2006. “The Supreme Court has overturned that vote.”
Media outlets across the state reported a rush among same-sex couples to obtain legal nuptials from duly authorized government officials in wake of the ruling.
On a 5-4 vote in the case of Obergefell v. Hodges, Justice Anthony Kennedy, a Ronald Reagan appointee, joined the court’s liberals — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in declaring that states cannot ban same-sex marriages and also must recognize such marriages performed in other states.
Tennessee was among the states, along with Ohio, Michigan and Kentucky, where prohibitions against same-sex marriage recognition were under challenge before the high court.
Writing for the majority, Kennedy observed that society’s assumptions about marriage have been subject to modified over the ages. But marriage remains, he wrote, “a keystone of the Nation’s social order.”
“Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” he contended.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” Kennedy said. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
Kennedy wrote that it has become apparent to the 5-member majority that the state laws in question “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.”
They therefore 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.”
“The Court now holds that same-sex couples may exercise the fundamental right to marry,” wrote Kennedy. “No longer may this liberty be denied to them.”
The bottom line, he wrote, is that a majority on the court believes “same-sex couples may exercise the fundamental right to marry in all States.”
“It follows that the Court also must hold—and it now does hold—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,” Kennedy wrote.
In his dissent, Chief Justice John Roberts acknowledged “strong arguments rooted in social policy and considerations of fairness” advanced in the majority opinion.
Nevertheless, Roberts remarked, “this Court is not a legislature.”
“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be,” wrote Roberts, who just a day before the Obergefell v. Hodges came down released a controversial opinion of his own on the Affordable Care Act. As a result of his reasoning in King v. Burwell, the chief justice — who was appointed by George W. Bush — was himself accused by critics of reconfiguring statutory language to suit a desired outcome.
Quoting Alexander Hamilton in the Federalist Papers, Roberts proclaimed, “The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment’.”
State’s Arguments Slain, Slatery Vows to Bow to SCOTUS
In the wake of oral arguments before the Supreme Court back in April, Tennessee Attorney General Herbert Slatery issued a statement reiterating his desire to see the justices leave decisions about marriage recognition to individual states.
“This has been the longstanding province of the states and our position is that it should stay that way,” said Slatery, adding that “citizens of the state (should) vote and decide such important issues.”
On Friday afternoon, Slatery issued an opinion blasting the ruling.
The majority’s order “not only changes the definition of marriage, but takes from the states and their citizens the longstanding authority to vote and decide what marriage means,” Slatery said in a prepared statement.
“To the Tennessee citizen who asks, ‘Don’t we get a chance to vote on this in some way?’ the answer from the Supreme Court is a resounding, ‘No, you do not’,” Slatery continued. “For the court to tell all Tennesseans that they have no voice, no right to vote on the issues is disappointing.”
All the same, the attorney general committed his office to “take the necessary steps to implement the decision.” In a press conference Friday afternoon, Slatery advised that government marriage-license issuers should refrain henceforth from discriminating against same-sex couples.
Issue Appears Partisan Now, But Wasn’t Always
The Tennessee Republican and Democratic Parties issued sharply differing reactions to the ruling after it was released Friday.
“With today’s decision we see that love and respect has triumphed and we rejoice knowing that every person has the right to marry the person they love,” TNDP chair Mary Mancini said in a press release statement. “Today is a day that Democrats celebrate with those couples as they build strong families while securing a future for themselves, in Tennessee and across our nation.”
“Tennesseans overwhelmingly voted to define marriage as between one man and one woman,” Haynes said. “If a change was to be made, it should have been allowed to play out through the democratic process but, unfortunately, today’s judicial activism short-circuits that ability. While this has long been pushed by the Democrats’ agenda, the issue is far from settled.”
In fact, both chambers of the Tennessee General Assembly were controlled by Democrats when it voted twice on lopsided tallies in favor of altering the state’s constitution to limit legal marriages to “one man and one woman.” Among the co-sponsors of the gay-marriage ban, which won approval in 2004 and 2005, were Craig Fitzhugh of Ripley, the present-day House minority leader, and former Rep. Mike Turner of Old Hickory, who in the past served as House Democratic Caucus chairman.
Two-term Tennessee Gov. Phil Bredesen, a Democrat who preceded Haslam, supported the same-sex marriage ban when it won ratification before voters in 2006, the same year he won re-election to the state’s highest elected office.
In a statement issued Friday afternoon, Fitzhugh indicatd he’s altered his perspective over the years. While he understands how “emotionally charged” the debate over same-sex marriage has been, the ranking House Democrat said he supports the Supreme Court’s decision.
“I firmly believe that civil marriage is a fundamental right for all people, regardless of race, religion or sexual orientation and that there should be no governmental interference with the bond that two loving people have for each other,” Fitzhugh said. “Today’s Supreme Court decision affirms this founding principle.”