A new Tennessee law signed by Gov. Bill Lee last week allowed public officials to refuse to perform marriages if a union does not align with their beliefs, a law that poses a threat to the Supreme Court’s Obergefell decision.
This law attempts to subvert the U.S. Supreme Court landmark marriage equality decision with Obergefell v. Hodges case. According to Talking Points Memo (TPM), “the new law effectively removes half of what is needed under state law to become legally married.” This is because according to Tennessee state law, marriage must be verified by the issuance of a marriage license and the solemnization of marriage which must be carried out by a religious or state official or state notary public.
The law only applies to the second aspect, solemnization of marriage, which may allow it to be upheld against Obergefell as the case’s central holding demands that states must license same-sex marriages and recognize same-sex marriages licenses issued by other states.
Experts compared the Tennessee law to the slow attack on Roe v. Wade, which federally protects a person’s right to obtain an abortion. In that case, various states passed abortion bans leading up to the overturn of the Supreme Court decision in 2022.
“I think they’re in the process of chipping away at marriage equality now to get the same result,” Chris Sanders, head of the Tennessee Equality Project, told TPM. Sanders also predicts the new law will quickly be challenged in court. However, with the U.S. Supreme Court stacked in favor of conservatives, the LGBTQ+ community remains vulnerable to an overturn like Roe v. Wade.
The bill was passed in the House in 2023, but didn’t make its way through the Senate until mid-February when it landed on Lee’s desk to be signed.
Tennessee Senate minority leader Raumesh Akbari told TPM “the shift in the way the Supreme Court is structured gives people a lot of leeway to do what they did with Roe: pass a law that’s unconstitutional on its face and see what the new Supreme Court has to say.”
The Supreme Court became a conservative majority after former president Donald Trump appointed three Justices during his term. These included Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. According to NPR, today’s Supreme Court is the most conservative it has been in 90 years. This represents a constant threat to the country’s LGBTQ+ community and other marginalized and oppressed groups.
Though this law does not specifically refer to same-sex couples, its earlier drafts were more obvious in intention, explaining that state officials who were allowed to solemnize marriages would be allowed to decline to “based on the person’s conscience or religious beliefs.”
Abby Rubenfeld, an attorney representing Tennessee on a case that contributed to the Obergefell argued that personal beliefs of state officials shouldn’t affect their official duties.
The Tennessee law may encourage other states to pass similar legislation that would basically undermine marriage equality.
