Tennessee May Allow Clerks to Refuse Marriage Licenses to Same-Sex Couples

Tennessee, having banned gender-affirming care for transgender youth and restricted drag performances, is now going after marriage equality.

The state’s House of Representatives Monday approved House Bill 878, which allows anyone to refuse to solemnize a marriage if they have religious or conscience-based objections. The Senate is considering a similar bill. If it becomes law, it could be used against same-sex, interracial, and interfaith couples as well as couples that include a transgender person.

Already, no clergy member in the nation is required to perform a marriage that goes against their beliefs, and churches are not obligated to host any ceremony with which they disagree. That comes under the First Amendment to the U.S. Constitution’s guarantee of freedom of religion and was also included in the federal Respect for Marriage Act, passed last year.

But the Tennessee legislation would empower government employees, such as those who issue marriage licenses in courthouses, to discriminate against couples who offend their religious views, according to its critics and local media.

The House sponsor, Republican Rep. Monty Fritts, said he’s not aware of anyone being asked to solemnize a marriage against their will, but he said whether that has happened is irrelevant, and his bill is needed to protect “civil liberties and rights,” TV station WBIR reports. He further claimed that it wouldn’t be used specifically against same-sex couples.

During debate on the bill in a House subcommittee two weeks ago, he said it’s aimed at stopping elder abuse, according to the Memphis Flyer. “When you look at some of the research that we have found on this, that … young folks are trying to marry older folks to get to their financial accounts,” Fritts said. “I think there are other things that we need to do.”

At that meeting, Michael Rady, a gay Nashville man who’s planning to marry his partner, said the bill would be a “jumbo-sized green light for any county clerk to deny a marriage license to a couple based on their race, gender, or religion.”

He is Jewish and his partner is not, he said. “No spiritual leader is compelled under any law to officiate a wedding they disagree with,” Rady said. “As someone planning a gay, interfaith wedding here in Tennessee, I’m here to tell you that I can’t imagine anyone like me wanting to have their wedding officiated by someone who is against it.”

He also asked committee members if they wanted to see a headline reading “Tennessee Lawmakers Make Marriage White-Only and Straights-Only in 2023.”

The sponsor of the companion Senate bill is Republican Sen. Mark Pody, who has previously introduced legislation aimed at undoing or at least undermining marriage equality. Pody once said God had called him to stop same-sex marriages. A Senate committee is scheduled to discuss his bill next Monday.

If such a bill becomes law, it would likely be challenged in court, as it would run afoul of the U.S. 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 said they’d like to see the decision overturned, but it stands as of now.

Congress passed and President Joe Biden signed the Respect for Marriage Act last year, protecting marriage equality nationwide no matter what the high court does. However, it does not require any state to issue marriage licenses to same-sex couples, so states could refuse to do so if Obergefell is overturned. Activists have pointed to this as a gap in the law. States would still have to recognize same-sex marriages performed in other states.

Shortly after the Obergefell decision, Kim Davis, then the clerk in Rowan County, Ky., shut down all marriage license operations in her office rather than issue licenses to same-sex couples. That began a long legal battle that saw her jailed briefly for contempt of court. Last year a federal judge ruled that she violated same-sex couples’ constitutional rights.

LGBTQ+ activists are decrying Tennessee’s move. “The Tennessee House of Representatives continues to be one of the most dangerous legislative chambers in the country for LGBTQ+ people,” said a statement from 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.” His group is asking Tennesseans to contact their state senators and urge them to vote against that version of the bill.

Human Rights Campaign Legal Director Sarah Warbelow also issued a statement, saying, “Extremist Tennessee lawmakers are unrelenting in their discriminatory attacks on the LGBTQ+ community. Instead of focusing on the issues that Tennesseans actually care about, radical politicians are wasting their time and using their power to target the LGBTQ+ community — from same-sex couples to transgender youth to drag artists. These bills are not about protecting children and they are not about religious freedom. They are about stripping away the basic human rights that LGBTQ+ people have fought for over decades, forcing LGBTQ+ people, particularly transgender and nonbinary people, back in the closet and labeling us as dangerous. We urge the Tennessee Senate to reject these discriminatory, hateful bills.”