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VOL. 39 | NO. 28 | Friday, July 10, 2015

Special action on same-sex nuptials a waste of time

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With Republican lawmakers scrambling for a response to the U.S. Supreme Court’s gay-marriage ruling, Tennesseans on both sides of the issue say they are seeking “equality.”

Immediately after the court’s decision on Obergefell v. Hodges, Democratic U.S. Rep. Jim Cooper of Nashville says, “Love and equality won. I’m glad the Supreme Court ruled on the right side of history.”

In contrast, Republican Gov. Bill Haslam and his appointed Tennessee Attorney General Herbert Slatery oppose the ruling, though their advice to county clerk’s offices was to comply with the rule and “promptly issue licenses.”

Says Haslam: “The people of Tennessee have recently voted clearly on this issue. The Supreme Court has overturned that vote.”

While most county clerk’s offices across Tennessee began issuing marriage licenses to gay couples immediately, some struggled with the transition because of computer software glitches.

Issuing a marriage license and solemnizing or conducting a wedding ceremony are separate tasks. In the aftermath of the court ruling, the state is compelling clerks to issue licenses to all couples but it isn’t requiring them to solemnize.

“Under state law, officials authorized to conduct ceremonies may do so at their discretion. However, as Attorney General Slatery has said, our best advice is ‘Do not discriminate,’” says AG spokesman Harlow Sumerford.

The House Republican Caucus also struggled with plans to respond to the court ruling, which overturned Tennessee law. Caucus Chairman Glen Casada of Franklin confirms members began meeting in House Speaker Beth Harwell’s office to brainstorm for a way to deal with the court’s 5-4 ruling.

Tennesseans overwhelmingly voted for a constitutional amendment nine years ago defining marriage as between a man and woman. A special session is being considered, Casada says, though he concedes the majority caucus has few options and no consensus.

While the state of Texas is disobeying the court ruling, Oklahoma and Alabama are considering stopping the solemnizing of marriages, though they would recognize marriages from other states, Casada says, noting that could be one legislative strategy for Tennessee.

“Sadly, five unaccountable judges” on the court created a new constitutional right that didn’t exist previously, Casada says.

Clerks balk

The Tennessee Equality Project, a public policy organization working to advance the rights of lesbian, gay, bisexual and transgender people and their families, monitored clerk’s offices across the Tennessee and eventually found 100 percent participation in the issuance of licenses.

Some people were confused about the court’s decision, believing it would stop them from getting a marriage license, according to Chris Sanders, the organization’s executive director.

But while every clerk’s office is issuing licenses, not all of them are conducting services, and some stopped in protest of the court decision.

“If they decide they don’t want to marry same-sex couples, they can’t marry any couples, meaning preside at the ceremony,” says Chris Sanders, executive director of Tennessee Equality Project.

Wayne County Clerk Stan Horton is among those refusing to conduct ceremonies in the wake of the court’s ruling, saying his office isn’t required to solemnize marriages.

“I’m opposed to it,” he says of same-sex marriages. “So I just chose to make a stand on my convictions, and that’s where I stand.”

Horton, who is in his fifth four-year term in southwest Middle Tennessee, says he made the decision years ago not to conduct ceremonies for same-sex marriages if the Supreme Court overturned state law.

“If we’ve got equality, I’ve got equal rights, too,” Horton says. “We’ve got decisions to make in life, and I’ve made mine.”

Smith County Clerk Clifa Norris, who was slow to issue licenses and reportedly stopped conducting marriage ceremonies after the court ruling, declined to give a reason when contacted.

“It’s just a decision me and my office came together and decided we were doing,” says Norris from Carthage in eastern Middle Tennessee.

Meanwhile, Decatur County Clerk Gwen Pope in West Tennessee resigned her post, along with two top officers, after the court made its rule, according to news reports. A call to the clerk’s office wasn’t returned.

In Rutherford County, Clerk Lisa Crowell’s office stopped performing ceremonies at the end of April, citing lack of space and personnel to handle the growing number of requests.

Crowell, a Republican elected to a second term in 2014, says the decision had nothing to do with the pending Supreme Court ruling, instead pointing out Rutherford County’s population keeps growing – estimated at 290,000 – while her staff remains the same size. The clerk’s office performed 981 marriages in the year leading up to May 1 when it stopped conducting ceremonies, Crowell says.

“It was a very easy transition,” Crowell says of the software used to handle same-sex marriage licenses. “We’re going to continue treating everyone with dignity and respect.”

Legislative moves

State Rep. Bryan Terry began working on legislation in anticipation of the court’s ruling to keep ministers and churches from being required to perform same-six marriages. The Murfreesboro Republican plans to sponsor the Pastor Protection Act either in a special session or the 2016 regular session with Rep. Andy Holt, R-Dresden, as primary co-sponsor.

“It comes as no surprise that the Supreme Court ruled in favor of same-sex marriage. I have had multiple constituents concerned with how the ruling may impact their church and their religious beliefs.

“If the issue is truly about equality of civil liberties and benefits, then this ruling should have minimal legal impact on churches,” Terry says in a written statement. “However, if the issue and the cause is about redefining marriage to require others to change their deeply held religious beliefs, then the concerns of many will be valid.”

Terry points out Texas passed a similar bill this year with openly lesbian Rep. Mary Gonzalez, D-El Paso, saying she felt justice for the LGBT community could co-exist with religious liberty.

“As such, when two individual liberties aren’t necessarily in line, there should be an inherent respect in the law,” Terry says. “Nothing in my intent should be construed as other than that.”

Holt is refusing to recognize the court’s ruling as valid, saying, “God is the ultimate Supreme Court and he has spoken. Marriage is between one man and one woman.”

He calls on his “friends of faith” who hold socially conservative principles and believe in the Tenth Amendment’s original intent to uphold the separation of power between the feds and states to “resist the abuse of our own government.”

No help necessary

While preachers’ reactions to the court’s ruling run the gamut of emotions, some say they don’t need the General Assembly’s help.

Rev. Matt Steinhauer of Faith Lutheran Church in Lebanon says, “It’s my understanding I have always had the freedom as religious clergy to marry who I want and who I don’t want, notwithstanding the court’s same-sex ruling.”

Not long after the ruling and reading about the proposed bill, Steinhauer says he posted on Facebook if any of his fellow clergy see anything about the Pastor Protection Act, “this pastor does not need any protection.”

A decision by the Lutheran Church’s governing body in 2009 allows the ordination of gay and lesbian couples in long-term relationships, but whether ceremonies are conducted remains up to each congregation. Faith Lutheran in Lebanon hasn’t made a decision, but short of that, Steinhauer says he would consider conducting a gay-marriage ceremony.

“I would not give a blanket ‘no,’” he says.

The amount of time, energy and money spent on the measure would be directed toward making sure all Tennesseans have access to affordable health insurance, says Steinhauer, a proponent of Insure Tennessee who rallied for its passage at the Legislative Plaza earlier this year.

Democratic state Rep. Craig Fitzhugh, leader of the House Minority Caucus, backs Steinhauer’s opinion and is skeptical of legislation reacting to the court ruling.

“When the Supreme Court of the land rules, it rules, good, bad or otherwise,” Fitzhugh says.

But when it comes to the prospect of a special session, he says he would support one if passage of Insure Tennessee is to be considered.

Legal view

Vanderbilt University law professor Brian Fitzpatrick, who observed the Supreme Court arguments Feb. 28, calls the basis of the court’s opinion “a conflated interpretation of the due process and equal protection clauses of the 14th Amendment.”

“Frankly, it’s not the most analytically sound opinion,” Fitzpatrick says, noting out the dissenting judges poked a good deal of fun at the majority on that point.

“As a real-world matter, the basis of the opinion was the dramatic change in social norms over the past decade or two that persuaded the majority it was time to bring gays into the fold as equal citizens,” Fitzpatrick says.

The proposed Pastor Protection Act isn’t needed, Fitzpatrick says, because the court’s opinion interprets the Constitution, which regulates only what government officials can do, not what private citizens can do.

“Now, if there were a federal, state or local statute that forced pastors to marry anyone legally eligible to do so, then there might be concern along these lines, but I am not aware of any such statute,” he says.

Tennessee Equality Project’s Sanders contends the First Amendment, which provides freedom of religion, protects all pastors. For instance, a synagogue could require a religious conversion or weeks of marriage counseling before it allowed a ceremony, he says.

As for the advice against discrimination being sent to clerk’s offices by the attorney general, Fitzpatrick is not confident some of these conscientious objectors will be protected by the law.

“The easiest way to take steps not to discriminate is to not discriminate: Marry anyone who is eligible,” he says. “Some public officials appear to have moral objections to doing so, and it may become a difficult legal question whether states and cities can permit them to opt out of performing gay marriages.”

Immediate backlash

If it were up to Lt. Gov. Ron Ramsey, Tennessee would not allow gay marriage.

In a Facebook posting immediately after the ruling, Ramsey wrote: “The Supreme Court today issued an unfortunate and fundamentally wrong opinion. In 2006, not even a decade ago, over 80 percent of Tennessee voters issued a strong mandate in favor of traditional marriage. Today, the Supreme Court declared that mandate null and void.

“While the Supreme Court did not stand up for traditional marriage, this decision does not end the institution. The federal government may have the ability to force Tennessee to recognize same-sex unions, but it cannot and will not change the hearts and minds of conservatives and traditionalists in Tennessee and elsewhere.

In the communities and churches across this state, the true definition of marriage, a union of one man and one woman, still lives and breathes. It is an eternal truth that no law or government can truly alter.”

The Senate Republican Caucus has not gone through any brainstorming sessions to react to the gay-marriage decision.

Ramsey, a Republican from Blountville in Upper East Tennessee, says he’s committed to protecting religious liberty and contends the court’s decision doesn’t require private citizens of faith to participate in same-sex wedding ceremonies. Yet, he believes that’s the next step on the “liberal agenda.”

Giving a peek at what will likely be a top issue on Capitol Hill in 2016, Ramsey says, “I look forward to taking the necessary steps to secure protections for business owners, clergy and citizens with religious objections to gay marriage when the Legislature returns in January.”

As Tennessee Republicans come to grips with the reality of the court ruling, they better prepare for laws protecting people from discrimination based on sexual orientation. That is likely the next battlefield.

Sam Stockard can be reached at sstockard44@gmail.com.

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