A lawsuit filed by the American Civil Liberties Union of Tennessee and the Tennessee Equality Project that challenges the way Tennessee lawmakers went about a proposed constitutional amendment banning same sex marriage was heard in court on Friday, Jan. 20
Davidson County Chancellor Ellen Hobbs Lyle heard arguments over the lawsuit filed last April charging that the Legislature and Secretary of State Riley Darnell broke legal rules for authorizing a state constitutional amendment by not giving proper public notice.
Despite the lawsuit, the Tennessee Equality Project (TEP) is moving forward with its fight against the November ballot initiative. It is currently advertising for a full-time campaign manager, and has leased office space in the former OutLoud! Department Store on st1:street w:st="on">st1:address w:st="on">Church Street. That space will serve as headquarters for the campaign.
The amendment, which defines marriage as between a man and one woman, passed overwhelmingly last year and has been sent to voters. The lawsuit charges that the state failed to meet guidelines as outlined in the state constitution that any constitutional amendment has to be passed by the legislative and a six month notice given. The suit says the state did not meet a six month requirement.
To become part of the constitution, it would have to win a number of votes equal to the majority of ballots cast in the governor’s race.
ACLU attorney Melody Fowler-Green spoke on behalf of the plaintiffs at the hearing.
The text was published by the secretary of state on June 20, or four months and 11 days before the Nov. 2 election. Plaintiffs, who are trying to prove "injury suffered," argued the lost days hurt the publicity of the resolution and gave them "less time to engage the electorate" and make a difference in the election. "The injury suffered is time lost," said.
Lawyers for the state say they gave public notice as early as March through venues such as the Internet and media. Despite numerous media reports on the amendment, the plaintiff’s attorney said that doesn’t meet the standard of the law for proper public notification because it’s not the practice of the legislature. Some $18,000 was appropriated by the legislature to publish the notice in newspapers across the state, after the six-month deadline had passed.
Fowler-Green, however, questioned the use of the media. "It should not be left to chance that some person of the media will cover it properly," she said.
The main objective of the lawsuit is to have a judge prevent the measure from being placed on the Nov. 7, 2006, ballot.
However, despite the plaintiffs’ argument of lost time, the judge said she didn’t see any "concrete harm." "That’s the heart of this, and I need an answer for that," she said.
Hobbs Lyle had earlier approved a request by more than 90 state legislators to join the lawsuit. The 99 lawmakers are represented by attorneys from the Alliance Defense Fund, a conservative legal group that often opposes the ACLU in lawsuits. Forty-six Republicans in the house and 16 of 17 in the senate have asked to intervene.
Attorneys in the case in addition to Fowler-Green include Cooperating Attorney Abby Rubenfeld of Rubenfeld Law Office.