Everything You Need to Know Now About Marriage Equality in Tennessee

What's Going on in Tennessee?

There are two lawsuits in Tennessee: one in state court and the other in federal court. Of the two, the federal lawsuit is far more likely to bring marriage to the state, and possibly to the entire country.

The federal lawsuit, Tanco v. Haslam, dates back to October of 2013, when the National Center for Lesbian Rights sued the state. That was followed by a pro-equality ruling in March of 2014, which the judge in the case did not stay. But before couples were able to marry, the state was able to obtain a stay from the Sixth Circuit Court of Appeals, and also to appeal the decision. In November of 2014, the Sixth Circuit ruled that the marriage ban was constitutional, citing the will of the voters as a primary justification.

In contrast, the state lawsuit was filed by a single couple seeking a divorce after they married in Iowa. A judge ruled in August of 2014 that the state ban was constitutional, writing that only straight couples have a right to marry.

What Happens Next?

The U.S. Supreme Court will probably hear oral argument sometime around late April, with a decision sometime around late June. That schedule is purely speculative, based on the timeline laid out by the court for briefing, and could change.

If the Supreme Court upholds marriage equality, there would likely be a brief period of confusion during which antigay state officials struggle to comply with the ruling. Some states might try to delay the start of marriage as long as possible, or create artificial roadblocks to obtaining a marriage license.

It's hard to say what would happen if the Supreme Court rules against marriage equality. It's possible, though unlikely, that states that currently have marriage equality might try to undo it. What's most likely is that such a ruling would maintain the status quo, and that marriage would remain in states that already have it while bans would remain in states that do not. In that case, the only recourse would be a slow, expensive state-by-state effort to repeal the bans. That would need to be prefaced by a lengthy public education campaign that would likely take years.

How do Tennesseeans Feel About Marriage Equality?

Polling in marriage in Tennessee is fairly limited, but the data show that the state lags far behind the rest of the country. Over the last four years, three surveys have shown that support is hovering in the mid-20s, with opposition in the mid-60s. In 2013, Tennessee's legislature unanimously approved a Traditional Marriage Day.

The Tennessee constitution's ban on marriage dates back to 2006. An additional statute prohibits civil unions.

Several municipalities have enacted extremely limited domestic partnerships. But Chattanooga voters actually repealed domestic partnership rights in 2014 by an overwhelming margin.

What Are the Arguments for Marriage Equality?

The arguments in Tennessee are similar to those made in most other marriage equality cases: that marriage equality is required by the Due Process and Equal Protection clauses of the U.S. Constitution. All of the plaintiffs are already married in other states, so the focus in Tennessee is on recognition of out-of-state licenses.

The arguments of NCLR persuaded District Court Judge Aleta Trauger, who wrote, "At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history."

What are the Arguments Against Marriage Equality?

Tennessee's arguments are generally consistent with those of other states: that the will of the voters is more important than the U.S. Constitution. 

In reversing Trauger's decision, the Sixth Circuit essentially threw up its hands at the case, and said that voters should be the ones to decide marriage policy. “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," wrote Circuit Judge Jeffrey S. Sutton, the author of the main opinion, "Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

The Sixth Circuit also cited Baker v. Nelson, a 1972 case in which the Supreme Court wrote that marriage equality is not worthy of federal review.

The state of Tennessee opposed Supreme Court review of the Sixth Circuit decision. Officials in the other three Sixth Circuit decisions all supported review.

This echoes a decision by Judge Russell E. Simmons, who upheld the ban in Tennessee's state lawsuit. Simmons found that marriage is a "fundamental right," he added that the right only exists for heterosexuals. How can a right be "fundamental" when it only applies to certain people? That's unclear.