August 11, 2014 at 5:02 pm EDT | by Chris Johnson
Tenn. court breaks string of marriage equality rulings, upholds ban
gavel, gay news, Washington Blade, justice

A Tennessee court has broken the string of victories for marriage equality within the courts (Photo by Bigstock).

A county judge in Tennessee has upheld the state’s ban on gay nuptials, reportedly breaking a string of at least 30 court victories in favor of marriage equality.

Ninth Judicial District Circuit Court Judge Russell Simmons Jr. of Kingston upheld the Tennessee ban in a seven-page decision issued on Aug. 5 that became electronically available on Monday.

“The Court finds that marriage is a fundamental right,” Simmons writes. “However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state’s laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.”

Simmons upheld both Tennessee’s ban on same-sex marriage, approved by voters as part of the state constitution in 2006, and the state’s Anti-Recognition Law prohibiting recognition of same-sex marriages performed elsewhere.

Unlike other judges who’ve determined bans on same-sex marriage cannot withstand scrutiny following the U.S. Supreme Court’s decision against the Defense of Marriage Act, Simmons determined the DOMA decision doesn’t apply to cases against marriage laws within the states.

“The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another state,” Simmons writes.

Instead, Simmons finds that a 1972 decision resulting from the marriage equality case of Baker v. Nelson, which the Supreme Court refused to hear for lack of federal question, is “still applicable” to the courts.

Simmons emphasizes that his ruling is only binding on this case and on this court. Further, he invites appellate courts to assess whether doctrinal developments in the judicial system after the Baker decision have changed judicial precedent with respect to marriage.

That ruling from an appellate court may come soon now that a three-judge panel on the U.S. Sixth Circuit Court of Appeals has heard a federal challenge to Tennessee’s ban on same-sex marriage. A decision from the court is expected in a month or two.

According to SCOTUSblog’s Lyle Denniston, the Tennessee ruling marks the first time in the 14 months since the Supreme Court ruled against DOMA that a court has determined a ban on same-sex marriage is constitutional.

“More than two dozen courts, from trial courts to state supreme courts and federal appeals courts, have faced that constitutional issue, and the string of decisions nullifying the bans was unbroken until the Tennessee decision,” Denniston writes.

Marc Solomon, national campaign director for the LGBT group Freedom to Marry, said the loss for supporters of marriage equality in this court is an isolated one.

“One wrong-headed decision out of more than 35 cases since the landmark victory at the Supreme Court last year isn’t too shabby,” Solomon said. “It also serves as a reminder that, while we’ve been winning, we haven’t yet won and so we need to keep making the case in the court of public opinion that America’s ready for national resolution and that the denial of marriage in Tennessee and elsewhere has real, human consequences.”

The lawsuit was filed by Frederick Michael Borman and Larry Kevin Pyles-Borman, a gay couple that resides in Tennessee, but married in Iowa in 2010. The couple challenged the constitutionality of the marriage laws in Tennessee because they’re seeking a divorce.

Although SCOTUSblog is asserting that the Tennessee decision is the first in favor of a marriage ban since the DOMA decision, the Human Rights Campaign is disputing that characterization.

Other state judges have refused to grant divorces to same-sex couples in Mississippi and Florida as a result of bans on same-sex marriage, HRC noted. The string of rulings in favor of marriage equality at the federal level also remains unbroken.

“We have consistently pointed to the consecutive string of federal court victories, as it would be inaccurate to lump in state court rulings to that string of wins,” said Charles Joughlin, an HRC spokesperson.

The decision comes several months after Simmons, 70, announced he would retire from the bench after completing his eight-year term this year. Simmons was appointed interim judge in 1990 by the late Gov. Ned McWherter, a Democrat, and won elections to continue serving on the bench in 1992, 1998 and 2006.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • VisionofHildegardofBingen

    Christianity is a social disease. Kill it. It is directly responsible for this discrimination, and we continue to clean up its sewage without any help from its infected pions. Instead, Christianity continues to spread its disease through the mouths of its leading liars who’ve never, ever, been exposed to the discrimination that is the product of a worthless, empty religion. Destroy the social disease of Christianity.

    • El Dorado

      Precedent has no statute of limitations unless it’s later found the case was ruled upon based on faulty reasoning. Roe V Wade was decided in 1973 and still impacts us today.

      Of course, our enemies will always look for a loophole but the case they site I’d say has been trumped by the court reviewing the Windsor and Prop 8 case. DOMA is also a federal law that allows states to deny recognition of marriage equality. You can no loner say it’s not a federal issue.

      Finally, we have precedent in Romer V. Evans which ruled laws cannot be passed based on a majority’s dislike of gay people that infringe upon their equal protection under the law. That’s what DOMA is doing. The good thing is this majority was written by Justice Kennedy! You can see where this is heading.

  • charles

    Hopefully the 6th circuit court will rule in favor of the gay marriage ban. That would all but guarantee that the Supreme Court will take up the Gay Marriage Issue.

    Then it will finally be over. It will be 5-4 in favor of gay marriage with Kennedy being the swing vote. Soon we will be done with this ridiculousness and gay marriage will be legal nationally.

    • El Dorado

      Your assessment will likely be the outcome BUT I would never say it’s over. Roe V Wade made abortion legal in 1973 and conservatives have been fighting that decision to this day!

      If you believe they will give up on opposing marriage equality, you are likely dreaming. It never really ends it seems. Heck, even despite gains by racial minorities under the law, conservatives are always trying to reverse them.

  • jonathon

    Good for Tennessee. Nice to know morals still exist and God is heard. Absolutely nothing against the people but that doesnt mean people have to empower it.

    • El Dorado

      Well, if marriage were owned by religion you might have an argument but it’s not. You can get married without having religion involved at all.

      The state issues the license, enforces the laws of marriage and grants divorces. Churches can do none of that.

  • Rennie

    If you rant uncontrollably about issues and other peoples viewpoints without regard to truth or circumstance: You might be an extremist.
    If your words of hate are directed towards others as a group, and not as the individuals you actually have a problem with, you might be a bigot.
    If vile and contemptible things flow from your lips like water without regard to who you might hurt or offend, you might be a self-rightous prick. It does not matter which side you’re on, if you are an extremist, angry, foul mouthed a-hole you’re just standing the way. Move over and let the adults take over.

    • El Dorado

      Don’t count on Roberts to make a just decision. I don’t think he sides with marriage equality. This will solely hinge on Justice Kennedy.

    • Alexander Everhart

      Hey get off my 15,000 year old flat earth and leave my talking snakes and booming voices from the sky alone. Oh and don’t touch my bacon either, even though I’m not supposed to be eating pork products.

    • El Dorado

      Well, as Mark Twain put it, “faith is believing in something you know ain’t so!”

  • Alexander Everhart

    Christinsanity is a social and mental disease and should not be allowed. It is immoral. It is a choice. I do not agree with the lifestyle. Gay people getting married does not take away anyone’s freedom of religion. However, denying gay marriage DOES take away religious freedom from others such as myself. CONservative Christians don’t believe in religious freedom, they are very selfish, vile hypocrites who violate their own gods commandments. Going to church on Sunday even though sabbath is Saturday. Eating so much pork that they become so fat you would think the guys are going to give birth to their Anti-Christ. I wish all CONservative Christians would move to the South and that the South would finally secede from The Union and be done with them once and for all.

  • El Dorado

    “The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another state,” Simmons writes. Instead, Simmons finds that a 1972 decision resulting from the marriage equality case of Baker v. Nelson, which the Supreme Court refused to hear for lack of federal question, is “still applicable” to the courts.
    ==========================================================================
    At the time of the 1972 decision, there was no federal precedent for reviewing any case on marriage equality for Same-Sex Marriage. So of course, there would have not been a federal question. Simmons has it ass-backwards like most conservatives! Windsor and the Prop 8 case, established a federal question on marriage equality which the SCOTUS cannot ignore.

    How can marriage at the state level not be in question given that DOMA, a federal law, restricts recognition of marriage equality based on state laws and gives states the right to refuse recognition of such marriages? We have precedent for gay rights under Romer V. Evans which said laws cannot single out gay people as they have equal protection under the US constitution. Our arguments must site the Romer precedent which Justice Kennedy wrote!

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