Judge upholds lawmakers’ path to gay marriage amendment
The American Civil Liberties Union of Tennessee had filed a lawsuit charging that the state failed to meet notification requirements as outlined in the Tennessee Constitution, which states an amendment must be published six months before the next General Assembly election.
The amendment was approved by a majority of the 103rd General Assembly in May of 2004. But instead of six months, plaintiffs claimed the text of the amendment was published by the secretary of state on June 20, or four months and 11 days before the Nov. 2, 2004, election.
The amendment, which defines marriage as between one man and one woman, passed the Legislature overwhelmingly in 2005 and will be voted on Nov. 7 in the statewide general election.
Plaintiffs, who were trying to prove injury suffered, argued the lost days hurt the publicity of the resolution and gave them little time to make a difference in the election.
But Davidson County Chancellor Ellen Hobbs Lyle ruled Thursday that the “publication requirement was met and the plaintiffs were not injured.”
“The court concludes it is not empowered to withdraw the marriage amendment from the November 2006 ballot,” Lyle wrote. “Courts are granted the power to halt an amendment where the Constitution has not been followed and the challenger has been irreparably injured. In this case, neither has occurred.”
Attorney General’s office spokeswoman Sharon Curtis-Flair said the state was pleased with the decision.
“Under the unique facts of this case, the publication requirement was met and the plaintiffs were not injured,” she said.
In her ruling, Lyle said the “text of the proposed amendment never changed from the time it was filed in the General Assembly and that the actual text of the amendment was extensively published by the media consistent with the six-month time period.”
At a hearing last month, lawyers for the state referred to legal books that said the word “publish” means “to make public,” which they said lawmakers did as early as March through venues such as the Internet and media.
“The court concludes that this actual, although not official, publication comes within the broad and general wording of the Constitution,” Lyle wrote Thursday. “Thus, in this case media coverage cured the General Assembly’s default in publication.”
ACLU executive director Hedy Weinberg said plaintiffs have appealed the judge’s ruling to the Tennessee Supreme Court.
“The framers of the Tennessee Constitution put specific safeguards in place to guarantee that the voters are given ample opportunity to engage in public debate and discussion before amending the Constitution,” Weinberg said. “Those requirements should be followed exactly as the founders required.”
There are currently 18 states with constitutional amendments against gay marriage. Most of those amendments were adopted after Massachusetts’ highest court legalized gay marriage in 2003.
In all, there are currently active challenges in Georgia and Nebraska to constitutional bans on gay marriage, according to the National Gay and Lesbian Task Force.
Tennessee is one of five states where a proposed ban has passed through the Legislature and is on its way to voters.