A new Tennessee law undercuts the Supreme Court’s 2015 landmark, closely divided decision legalizing same-sex marriage nationwide, and marks a significant victory for a resurgent conservative movement to restrict LGBTQ rights.
The law, signed by Gov. Bill Lee (R) to little fanfare on Wednesday evening, allows state officials to decline to “solemnize marriages.”
The new law effectively removes half of what is needed under state law to become legally married. In Tennessee, marriage occurs after two events: the issuance of a marriage license, and the formal solemnization of a marriage, which can be carried out by a religious official, a state notary public or a state official.
By targeting solemnization and not marriage licenses, the law allows Tennessee to undermine the Supreme Court’s ruling in Obergefell v. Hodges while potentially avoiding a direct challenge to the precedent. Experts compared the new Tennessee law to the campaign waged against Roe v. Wade, in which many states passed increasingly aggressive abortion bans in the years leading up to the 2022 Dobbs decision, when a majority of justices were willing to revisit and scrap the Roe precedent entirely.
“I think they’re in the process of chipping away at marriage equality now to get to the same result,” Chris Sanders, head of the Tennessee Equality Project, told TPM, comparing it to the anti-abortion movement. He predicted the law would swiftly draw challenges.
The new law is among the first in the country to allow state officials to decline to participate in same-sex marriages or other forms of marriage. It represents a rising, aggressive tide in the conservative social movement: a recognition that after achieving a generational goal with the Dobbs decision, and with a Supreme Court stacked 6-3 in favor of conservatives, they’re in a position to lay siege to marriage equality and other personal freedoms.
“The shift in the way the Supreme Court is structured gives people a lot of leeway to do what they did with Roe: pass a law that’s unconstitutional on its face and see what the new Supreme Court has to say,” Tennessee Senate minority leader Raumesh Akbari (D), an opponent of the law, told TPM.
“It’s being set up intentionally that way the same way the religious right set up challenges to Roe,” Abby Rubenfeld, an attorney who represented Tennessee in a case that was consolidated into the Obergefell decision, told TPM. “They want to overturn it.”
The law does not explicitly mention same-sex couples. Earlier drafts of the law contained a more explicit statement that officials could decline “based on the person’s conscience or religious beliefs.” But even that fell short of stating any of the explicit concerns that someone may have with a marriage, be they of the same sex or different races or creeds.
The fact that the law applies only to solemnization could mean that any challenge might avoid the central holding of Obergefell: that states must license same-sex marriages and recognize same sex-marriage licenses issued by other states.
Rubenfeld, the attorney, argued that the personal beliefs of state officials shouldn’t factor into the duties of an official role. “Once you’re elected, you don’t do these things in your individual capacity. You’re performing the job.”
Solemnization can be performed by state officials, as well as non-state officials including priests, rabbis, imams and other religious figures who have long been understood to have discretion on who and who not to marry.
“The state has a complete monopoly on the issuance of marital licenses, whereas they don’t have that in terms of solemnization,” Anthony Michael Kreis, a professor at Georgia State College of Law, told TPM.
The question would then come down to discrimination, and how courts saw the role of state officials in solemnizing a marriage.
“It would basically be one-off acts of discriminatory administration,” Kreis said. “You wouldn’t be challenging the issuance of a license.”
The bill initially passed through the House in 2023, but bounced around the Senate for a year before passing in mid-February and getting Lee’s signature on Wednesday.
Its passage, a big success for Republicans legislators more hellbent on unwinding LGBTQ rights than perhaps those of any other red state, happened with little pomp. Lee in particular went radio silent on the legislation: no press release or mention of it on his social media feeds. His spokesperson did not respond to TPM’s questions. In a live interview with Politico Thursday morning, he did not bring the new law up and he was not asked about it.
Akbari, then in the state House of Representatives, said she noticed an uptick in the ferocity of her Republican peers’ anti-gay rights crusade after Dobbs.
“The composition of the legislature was a lot different,” she said. Before Dobbs, “bills that were so blatantly against what the Supreme Court had said died in committee. They died a swift death — that’s a big difference.”
Tennessee is able to pass such legislation even after Congress passed a federal law, the Respect for Marriage Act, to repeal the Defense of Marriage Act — which had defined “marriage” as between a man and a woman and did not require states to recognize same-sex marriages performed in other ones. (DOMA was still on the books, though unenforceable, under Obergefell.) Both chambers of Congress moved the Respect for Marriage Act in 2022, a direct response to Justice Clarence Thomas’ concurrence in Dobbs in which he encouraged a reconsideration of precedents including the landmark same-sex marriage decision.
Justice Samuel Alito, who authored the majority opinion in Dobbs, didn’t have much reassurance to provide either, though he took (wholly unbelievable) pains to limit the fallout from the decision by insisting that his logic — unenumerated rights are only valid if they’re rooted in the country’s history and tradition — somehow only applies to abortion.
While the Respect for Marriage Act was meant as a statutory safety net should the Supreme Court follow Thomas’ lead, it leaves plenty of leeway for states like Tennessee to pass state laws that silo off same-sex couples if Obergefell goes down. The law only requires that states recognize same-sex marriage licenses from other states where it’s legal, not that they issue them themselves. It also, as a concession to get more Republicans on board, exempts nonprofit religious organizations — including churches — from providing “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”
Under this law alone, the country would, should Obergefell be overturned, likely return to the pre-Obergefell patchwork, where couples had to travel to certain states to get married.
Armed with a friendly Supreme Court, a base increasingly invested in culture-war red meat and a protective gerrymander, Tennessee’s Republicans are particularly well-equipped to be the tip of the spear as the right targets same-sex marriage, not long ago thought to be an issue settled both by courts and overwhelming public will.
“There’s a different type of Republican even in Tennessee’s General Assembly,” Akbari said, noting that the “more moderate, business-minded Republicans” are increasingly being sorted out in favor of hard-line partisans. “National trends are completely taking root in the state government.”
