We need to talk about the future of marriage equality in Tennessee
Note: “Same-sex” couples is society’s phrase for two people who were assigned the same gender at birth and have not changed their government-recognized gender. This term enforces a false binary of gender and does not reflect the full spectrum of LGBTQ+ identities, but in this article we will use the term as deployed by the governing bodies discussed here, as well as press coverage of marriage equality news.
Marriage equality is under attack in Tennessee. On Monday, March 6, the state’s House of Representatives passed House Bill 878, a bill including an amendment that would allow county clerks to deny marriage licenses to LGBTQ+, interfaith or interracial couples in Tennessee.
The section in question reads:
“A person shall not be required to solemnize a marriage if the person has an objection to solemnizing the marriage based on the person’s conscience or religious beliefs.”
See the full bill text and track HB878 here.
The bill is now in consideration in the state Senate, where it has been referred to the Senate Judiciary Committee and is on the committee’s agenda for Monday, March 13. Though the bill is scheduled for consideration that day, a solid answer as to whether HB878 will pass in the Senate is not expected until later this year.
Tennessee’s recent history of anti-LGBTQ+ legislation
Since 2015, Tennessee has enacted more anti-LGBTQ+ laws than any other state in the country, as reported by the Human Rights Campaign. These laws include: two bathroom bans, three laws preventing transgender students from playing sports consistent with their gender identity and one law allowing discrimination by state contractors providing child welfare services paid for with taxpayer funds.
Just in the last two weeks, Governor Bill Lee signed a law criminalizing drag performances on public property or any location where people under 18 could be present, as well as a law banning age-appropriate, best practice gender-affirming care for trans youth.
“The Tennessee House of Representatives continues to be one of the most dangerous legislative chambers in the country for LGBTQ+ people,” says Chris Sanders, executive director of the Tennessee Equality Project. “They have ignored constituents in their offices, phone calls and compelling committee testimony. It is time they became the People’s House again.”
A conflict of federal and state law
This bill is the latest in an apparently unceasing avalanche of measures that the Tennessee legislature has passed that directly attack LGBTQ+ rights. The Respect for Marriage Act, which President Joe Biden signed in December, theoretically protects marriage equality nationwide no matter what the Supreme Court does. However, Tennessee legislators in support of the bill claim that there is an exploitable loophole that would not make the bill, should it be signed, in violation of federal law.
Regardless of how one spins it, this bill violates the Constitution and federal law, making it a viable candidate for action by the ACLU and similar legal activist organizations.
The future of House Bill 878
HB878 will certainly receive facial constitutional challenges in court, meaning that the legislation can be challenged regardless of whether or not a couple has been denied a marriage certificate on the basis of this arbitrary and subjective metric. The bill stands in opposition to the Supreme Court’s 2015 Obergefell v. Hodges decision, which struck down all remaining state bans on same-sex marriage.
Conservative Supreme Court Justices Clarence Thomas and Samuel Alito have openly and repeatedly said they would like to see the Obergefell decision overturned. If they are successful in their mission, the Respect for Marriage Act, thanks to compromises made in an effort to pass the act, will not require states to issue marriage licenses to LGBTQ+ couples.
It is vitally important to pay attention to this and other state laws discriminating against the LGBTQ+ community, not only for humanitarian reasons, but because these lower level legislative pushes are a strategy to get lawsuits related to LGBTQ+ discrimination and marriage equality to be brought before the Supreme Court. If these lawsuits reach the bench before Thomas, Alito and their fellow conservative cohort are replaced, it is likely that marriage equality in the United States as we know it will be gutted.
So…what can I do?
On a practical level, you can put your money, voice and vote behind organizations, activists and politicians actively working to defend LGBTQ+ rights in Tennessee and beyond:
- Tennessee residents can take action against the bill here.
- Non-residents can support the work of the Tennessee Equality Project here or the ACLU’s LGBTQ+ rights initiative here.
Beyond those simple actions, you can pour your love and support into whatever corners of the LGBTQ+ community you find yourself near or part of. Open your kitchen, your art, your DMs, whatever you are able to give, and nurture the community around you. Loudly voice your support for trans rights. Educate yourself and others on queer history and stories. Be present and compassionate. And take care of yourself. Remember:
“Telling our stories, first to ourselves and then to one another and the world, is a revolutionary act. It is an act that can be met with hostility, exclusion, and violence. It can also lead to love, understanding, transcendence and community. I hope that my being real with you will help empower you to step into who you are and encourage you to share yourself with those around you.” — Janet Mock, transgender rights activist, writer, TV host, director and producer