Academic journal article The University of Memphis Law Review

Does Tennessee's Constitution Require Permitting Same-Gender Marriages?

Academic journal article The University of Memphis Law Review

Does Tennessee's Constitution Require Permitting Same-Gender Marriages?

Article excerpt

I. INTRODUCTION

On March 17, 2004, House Joint Resolution 990 was filed to propose a constitutional amendment defining marriage in the Tennessee Constitution as consisting only of the union of "one man and one woman."2 Given the current developments3 surrounding same-gender marriage4 in the United States, it is not surprising that Tennessee would want to amend its constitution to protect the historical institution of marriage. But is a constitutional amendment necessary to prevent same-gender marriage in Tennessee, or does the existing law in Tennessee already include a prohibition against same-gender marriage? To date, there are no cases that specifically address the issue of a constitutional right for same-gender couples to marry pursuant to the Tennessee Constitution. Consequently, there is no definitive answer as to whether Tennessee's Constitution would require permitting same-gender marriages.

Tennessee has adopted its own version of the Defense of Marriage Act.5 It reads as follows:

(a) Tennessee's marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.

(c) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.

(d) If another state or foreign jurisdiction issues a license for persons to marry which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.6

Only one state currently requires the recognition of same-gender marriage-Massachusetts.7 Other state supreme courts have also required recognition of same-gender marriages, but their respective state constitutions have been amended or statutes have been enacted to overcome any requirement to recognize same-gender marriage in those states.8 Massachusetts law, pursuant to Goodridge v. Department of Public Health9 constitutionally requires the recognition of same-gender marriages, but efforts are underway to amend the Massachusetts Constitution to allow only civil unions.10 Given the court's holding in Goodridge, these efforts face an uphill battle.

The United States Supreme Court recently denied certiorari in a case challenging the validity of the Goodridge opinion.11 Furthermore, the United States Congress also voted down the Federal Marriage Amendment.12 It is difficult to interpret what signal, if any, the Court might be sending by denying certiorari or how federal law will develop in the wake of opinions like Goodridge, but it is clear that state supreme courts and state legislatures can and do provide constitutional protections for same-gender marriages.13 Likewise, it is clear that federal law does not require state supreme courts and state legislators to permit same-gender marriages.14 It is not clear, however, how Tennessee law, absent a constitutional amendment, would treat a claim that same-gender marriage should be constitutionally permitted in the state of Tennessee.

This Note addresses the relevant law in Tennessee surrounding same-gender marriage and suggests how the Tennessee Supreme Court might rule on the issue of same-gender marriage if the constitutional amendment proposed is not adopted by the citizens of Tennessee. Part II of this Note analyzes the federal law relating to same-gender marriage. …

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