January 20, 2006: Hearing Held in ACLU-TN Challenge to Proposed Constitutional Amendment Banning Same-Sex Marriage
On Friday, January 20, 2006, Chancellor Ellen Hobbs Lyle heard arguments in ACLU of Tennessee, et. al. v. Darnell, et. al., ACLU-TN's challenge to the proposed constitutional amendment banning same-sex marriage. Chancellor Lyle indicated that she will issue a written opinion by February 20. Because this unconstitutional amendment is slated to be on the state-wide ballot next November for ratification, time is of the essence in this case. Everyone involved agrees that the Tennessee Supreme Court may have to make the ultimate decision, and must do it rather quickly. A decision can be expected by mid-2006.
The American Civil Liberties Union of Tennessee filed the lawsuit in April 2005, challenging a proposed amendment to the Tennessee Constitution that would ban same-sex couples from being able to marry in the state. The lawsuit was filed in the Chancery Court for Davidson County and charges that the state failed to meet notification requirements as outlined in the State Constitution.
“The drafters of our State Constitution put in place very specific safeguards to protect the Constitution from being amended at the whim of politicians. Unfortunately, in their haste to write discrimination into the Tennessee Constitution, the sponsors of this amendment are attempting to undermine the democratic principles guaranteed by the Constitution," said Hedy Weinberg, ACLU-TN executive director. “It’s shameful that the politicians who are so eager to prevent gay people from securing the protections of marriage have so little respect for our State Constitution that they are willing to ignore these procedural safeguards.”
The ACLU filed the lawsuit on behalf of ACLU members; the Tennessee Equality Project (TEP), a statewide lesbian, gay, bisexual and transgender lobbying organization; State Representatives Larry Turner, Beverly Robison Marrero and Tommie Brown; as well as a number of private citizens. The suit names a number of government officials, including the state Secretary of State, Riley C. Darnell, Coordinator of Elections, Brook K. Thompson, and Attorney General, Paul G. Summers.
State Representatives Turner, Marrero, and Brown explained their reason for joining in the lawsuit: "When we took office, we swore that we would uphold the Tennessee Constitution. The Tennessee Constitution is what keeps us honest. When we no longer follow the rules, democracy is sacrificed. We are joining in this lawsuit because it's our duty to make sure that when we consider proposals to amend the State Constitution, we follow the rules. That didn't happen here."
The lawsuit charges that the text of the amendment was not published six months prior to the General Assembly election as required by the State Constitution. Article XI, Section 3 of the Tennessee Constitution sets forth rules for amending the Constitution. Before an amendment can be placed on the ballot for a general election, it must first be agreed upon by a majority of both the Senate and House of Representatives. Then the text of the amendment must be published in Tennessee newspapers at least six months before the next election of the General Assembly. When the next General Assembly convenes, a second vote is taken, and the amendment must be approved by two-thirds of the members of both the Senate and House. The amendment is put to the citizens for a vote only if it meets all of these requirements.
According to the complaint filed by the ACLU, the proposed amendment received the necessary votes to pass the first vote in the House on May 6, 2004 and in the Senate on May 19, 2004. However, the Secretary of State failed to publish the text of the amendment until June 20, 2004 – only four months and 12 days prior to the General Assembly elections that took place on November 2, 2004.
“By requiring the state to publish proposed amendments to the constitution six months before the elections, the citizens are given the opportunity to properly debate an issue of such fundamental importance and decide if they want to reelect the legislators who proposed it or choose to elect someone else instead. Failure to meet the six month publication requirement renders the proposal unconstitutional and invalidates the amending process,” said Melody Fowler-Green, ACLU-TN staff attorney.
Shortly after the case was filed, the Alliance Defense Fund filed a motion to intervene on behalf of 91 state legislators. The Alliance Defense Fund, a right-wing legal organization founded by such groups as Focus on the Family, has attempted to insert itself in nearly every marriage equality case in the country. While their efforts have been unsuccessful in most places, ADF and the 91 legislators were granted a permissive intervention and are parties in the pending case. However, the addition of these new parties does not change the substance of the case in any way.
Attorneys in the case are Melody Fowler-Green, ACLU-TN staff attorney, and ACLU-TN Cooperating Attorneys Abby Rubenfeld of Rubenfeld Law Office, and Anne C. Martin of Bone McAllester Norton PLLC.