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.