BY ARTHUR S. LEONARD
The Tennessee Supreme Court on July 14 refused to decide whether a proposed state constitutional amendment against same-sex marriage should be blocked from this November’s ballot, finding that none of the plaintiffs had “standing” to invoke the court’s jurisdiction for this purpose.
The issue of standing arises from the requirement that courts only decide real controversies between parties with legal rights directly at stake but there is no question that there is a real controversy about whether the Tennessee Legislature complied with formal state constitutional requirements when it placed this amendment on November’s general election ballot. Yet, the court decided, in a rather artificial way, that it could avoid the controversy in this case. The opinion does not preclude a substantive challenge to the amendment if it is adopted by the voters on November 7, as seems likely based on public opinion polls.
The proposed Tennessee amendment is actually one of the less offensive examples of its genre, stating, “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state,” that anything defining marriage otherwise is contrary to the state’s public policy, and that marriages from other jurisdictions that do not meet this criterion are void.
The amendment, unlikely others around the country, apparently establishes no bar to civil unions or domestic partnerships.
The amendment was passed in May 2004 by both houses of the Legislature. The Tennessee Constitution requires that after receiving a majority vote in one session of the Legislature, a proposed amendment be published at least six months prior to the next legislative election, and then approved in the following session by a two-thirds majority, before going to voters.
In this case, the amendment’s text missed the six-month deadline for publication, established to give plenty of time for those who support or oppose the amendment to politick in hopes of electing a legislature that will support their position when the amendment comes up for its second consideration. The plaintiffs, represented by the American Civil Liberties Union of Tennessee, claimed that they had been improperly denied the full period prescribed to press for representatives opposed to the amendment.
The initial challenge was before the Chancellor of Tennessee, the official authorized to issue injunctive relief against the state, who found that the media coverage surrounding the amendment’s introduction satisfied the state constitutional requirement for its publication. The Chancellor also found that the individual plaintiffs lacked standing to bring the challenge.
The Tennessee Supreme Court unanimously asserted, in an opinion by Justice William M. Barker, that there was no need to decide whether the ruling on the publication issue was correct, because the case could be dismissed by finding lack of standing for the plaintiffs.
Among the plaintiffs, only two submitted affidavits supporting the argument that they had been personally injured by the lack of timely official publication. Neither of the affidavits was particularly persuasive. One came from a person who did not vote in the 2004 general election. The other came from someone very politically involved, but who had voted for a candidate who supported the amendment. Both of the plaintiffs are members of long-term same-sex couples who alleged that if the amendment passed they would be disadvantaged in their attempts to get married in Tennessee. But, the court found that neither had been disadvantaged by the delayed official publication or had shown they would have done anything differently if publication had happened earlier.
The court also found that the institutional plaintiffs, including the state ACLU chapter, all became aware of the proposed amendment as soon as it was introduced and the late official publication did not appear to the court to have affected their ability to campaign against the amendment. But the six-month publication window was established to provide sufficient time for debate prior to election and the amendment at that point was just clearing its initial hearing in the Legislature. The court did not consider that opponents of the amendment would not be motivated to begin a legislative election campaign until that step had been taken.