ACLU and TEP lawsuit dismissed by judge

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The American Civil Liberties Union of Tennessee (ACLU-TN) and the Tennessee Equality Project (TEP) have said they will appeal the Davidson County Chancery Court’s ruling dismissing a case have prevented the “Marriage Protection Amendment” from appearing on the November ballot.

The case, ACLU of Tennessee, et. al. v. Darnell, et. al., challenged the marriage amendment’s appearance on the November ballot on procedural grounds – arguing that the General Assembly had not followed the steps outlined in the Tennessee Constitution regarding public notice of proposed constitutional amendments.

Ellen Hobbs Lyle, Davidson County Chancellor, dismissed the case saying the state’s media had well publicized the details of the referendum and thus had, “cured the General Assembly’s default in publication.”

"TEP and our allies will not give up," noted TEP president Randy Cox. "The ACLU of Tennessee, the lead plaintiff in the case, will immediately file an appeal so that the case can move to the Tennessee Supreme Court. TEP continues to be a plaintiff in the case and we will continue to build a statewide movement to stop this amendment."

The lawsuit was brought 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.

ACLU-TN Executive Director Hedy Weinberg said she was disappointed in the ruling and that a “notice of appeal” had already been filed.

“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. Constitutional requirements are not technicalities,” she said. “ They were put in place because amending the constitution is a very serious decision. Those requirements should be followed exactly as the founders required – especially when the amendment in question would deny couples much needed protections for their families. As the court acknowledged today, the Constitutional requirements were not followed here. ACLU-TN has already filed a notice of appeal and we hope the Tennessee Supreme Court will expedite the appeal.”

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 .

“Requirements in the state constitution represent the ultimate will of the people and our lawmakers should be held accountable to the people by properly satisfying those requirements. This is especially important when our lawmakers are proposing to amend our foundational law. It isn’t just these plaintiffs who are harmed by the General Assembly’s failure to follow the rules – the integrity of the system is shaken,” said Melody Fowler-Green, ACLU-TN Staff Attorney.

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 Martin of Bone McAllester Norton PLLC.