SCOTUS decision: What it means for Tennessee


It’s important to distinguish that only section 3 of DOMA was declared unconstitutional; that is the section that defined the word ‘marriage’ as the “legal union between one man and one woman as husband and wife” and the word ‘spouse’ as a “person of the opposite sex who is a husband or a wife.’’

Section 2 of DOMA is still alive and well and states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

In laymen’s terms: Tennessee does not have to recognize your marriage in New York. But what about the 1,100+ Federal benefits that come along with marriages that have now been bestowed upon same-sex married couples that live in a state where same-sex marriage is legal?

At a rally held by TEP following the court’s decisions, Sam Felker, partner at Bass, Berry & Sims and a founding member of the Tennessee Stonewall Bar Association said, “It all needs to play out. There are no answers to that.”

“We’re going to have to stay tuned,” Felker continued. “The White House has said to its cabinet members review the federal statutes right away and the word from the White House is that they are going to try and implement this as broadly as possible.”

“Another question a lot of people have asked is can people in Tennessee go get married? The answer is no. This doesn’t mean that same-sex marriage is going to be legal in Tennessee in the immediate future.”

But it seems that the public opinion in Tennessee for same-sex marriage and/or civil union is shifting. In a MTSU poll released earlier this year, 62% of those polled were against same-sex marriage. In a recently released Vanderbilt University poll, 46% of those polled were opposed to marriage equality or civil unions.

The dramatic shift in those numbers can be attributed to the wording of the Vanderbilt poll which included civil unions as where the MTSU poll did not.

“The issue of gay rights is often a tough one to ask about and so it may well be a question wording effect,” said Dr. John Greer, Co-director of Vanderbilt Poll. “People do not like to _ban_ gay marriage, but they do support the idea of a marriage being between a man and a woman.  It is a classic conflict of differing norms.   It is also worth noting that the country is moving towards more and more gay rights and Tennessee is part of the wave—that is, there is surely growing acceptance of gay right. In short, differences such as these are to be expected.”

MTSU’s Dr. Jason Reineke concurred that wording was one possible reason for the disparate results. “[MTSU] only asked about legal marriage for ‘gay and lesbian couples.’ Vanderbilt asked about legal marriage or ‘civil unions without legal marriage for same-sex couples’.  The syntax is necessarily different given the differences in what was asked about. That aside, logically some portion of people who are opposed to legal same-sex marriage are in favor of civil unions. Thus Vanderbilt's ‘opposed’ group should be smaller than ours, since Vanderbilt asked about two different things in a single question, and we only asked about one. Furthermore, there may be some difference attributable to the use of ‘gay and lesbian’ versus ‘same-sex couples’. That difference is an empirical question; I don't know if there is data available testing whether the public responds more favorably to ‘gay and lesbian’ or ‘same-sex,’ but I'd be surprised if it weren't out there somewhere. For these reasons alone, the results aren't really comparable.”

So what does the future hold for same-sex marriage in Tennessee?

“This is one thing that is promising about Scalia’s dissent,” Felker said. “I anticipate there will be cases brought now challenging whether states can discriminate against same-sex couples.”

While the future for Tennessee may still be unclear, HRC president, Chad Griffin has pledged, “Within five years, we will bring marriage equality to all 50 states.”

Bottom Line? Revel in our recent victories but there is still much work to be done in Tennessee. You can find out how you can help when the TEP Nashville Committee meets July 31 at OutCentral to discuss marriage, safe schools and workplace equality.