Since the Supreme Court’s marriage decision last Friday, we have been inundated with questions and suggestions for how to respond.
We greatly appreciate all those who want to do all they can to defend marriage and religious liberty, and we will continue to do all we can in that regard. Many do not realize that the Family Action Council of Tennessee’s first act was to run the statewide campaign to pass Tennessee’s marriage amendment.
As the question of what to do is evaluated, I believe it is critical that everyone fully appreciate the legal and political lay of the land. FACT is blessed not only to be in a working relationship with many excellent national organizations attuned to this issue, but we have twenty years of direct, inside experience in the political process at our state Capitol. We have also been intentionally reaching out to ministers for the last nine years, and consequently, have a pretty good feel for where many of them are in terms of direct, vocal political engagement.
All these things must be considered in evaluating any course of action. Our experience is that hasty decisions grounded in anger or fear will rarely be good ones.
The Legal Landscape
Legally, Tennessee is in pretty good shape in terms of there being some protection from any immediate threats to religious liberty, unlike many states.
Note: the following only pertains to state or local laws and the Court’s marriage decision and does not relate potential conflict individuals and organizations might have with federal laws:
Religious Freedom Restoration Act
In anticipation of last Friday, way back in 2009, FACT and its legislative arm, Family Action of Tennessee (collectively “Family Action”), brought to the legislature a state Religious Freedom Restoration Act (RFRA). It is the law. What must be appreciated is that many of the states having problems with wedding vendors being sued do not have a RFRA. In fact, a report we received last year indicated that only one of the many lawsuits you may have read about has been brought in a state with a RFRA, the Elane photography case in New Mexico.
No Sexual Orientation/Gender Identity (SOGI) Law
The second legal consideration specific to Tennessee is that Tennessee does not have a sexual orientation/gender identity “non-discrimination” law. In 2011, Family Action brought to the legislature a bill that barred local governments from creating their own non-discrimination laws that went beyond the classes of people protected by state law. This second consideration is of vital importance to the religious liberty issues that are being raised.
As this article by an attorney from Alliance Defending Freedom makes clear, these SOGI laws are the laws that have resulted in the lawsuits attempting to force individuals and businesses into actions/activities that violate their religious convictions. While the following quote pertains to churches, the principle would apply to pastors and “wedding vendors”:
“But the greatest threat for churches lies in the application of the Court’s decision to believers who live in jurisdictions covered by so-called “non-discrimination” laws and ordinances. Everywhere that marriage has been redefined in the last several years has seen an awakening of non-discrimination laws that prohibit discrimination in employment, housing, or places of public accommodation on the basis of sexual orientation or gender identity. These laws are peppered throughout the states and local governments and are a lynchpin of the sexual revolution’s broader legal and political strategy: to establish non-discrimination laws at all levels throughout the country and to ‘to ensure that religion is not used as an excuse to discriminate.’” (emphasis mine)
Consequently, putting the first and second points above together, the absence of a SOGI law combined with the presence of a RFRA law means that Tennesseans are not as susceptible to lawsuits forcing them to choose between compliance with a state or local law and violating our conscience. That is not to say that a suit could not be filed, only that the climate here is not as friendly to those suits as in other states and that anyone sued does at least have the RFRA law to assert as a defense. Again, let us be clear: to have a law to assert as a defense does not mean that the jury will accept the defense, but Tennesseans are not defenseless.
We’ve been asked about a number of specific situations. Here are some of them. (The following is not intended to be legal advice for any particular person or situation, and each person who may be in one of these categories or have a specific situation should consult his or her own legal counsel.)
- Clergy. We are not aware of any public interest legal defense organization that believes clergy members are under any immediate threat to perform a same-sex “marriage.” That is particularly true in Tennessee, since our marriage laws are permissive and we have a RFRA. (County clerks are in a bit of a different situation, but no clerk has to perform marriages, only issue licenses. Issuing licenses can create a question of conscience that a clerk must resolve in his/her own mind before God.)
- Elected officials. Under Tennessee law, various specified elected officials can perform marriages. Again, that law is permissive; it does require any official to perform marriages. If an elected official has performed marriages in the past, then a refusal to perform a same-sex “marriage” could result in a lawsuit if it appears that the decision is not in keeping with the way he or she previously evaluated a marriage request. In other words, if the official routinely did marriages as a way to pick up extra money, and now refuses to perform a same-sex “marriage,” it might result in an equal protection claim. Keep in mind an elected official is acting in a different type of capacity as a pastor; the elected official is acting by virtue of his/her governmental position. However, even the elected official could argue that same-sex “marriage” violates his/her religious beliefs, which had theretofore not been an issue, and assert RFRA as a defense. Whether he or she would prevail cannot be predicted.
- Churches/ministries. Again, the RFRA law provides a defense should a church or ministry be sued. As to a church being forced to provide its facilities for a same-sex “wedding,” it should be kept in mind that we do not have a SOGI law. In other words, unlike other states that have SOGI laws, there is no law requiring anyone to rent their facility to anyone regardless of their marital status or their sexual orientation. Ask yourself this question: Are churches today required to rent their facilities to someone or some entity simply because they want to use it? No. Is not that other entity—say, for example, the ACLU or Planned Parenthood—a legal entity with a legal right to do what it does? Yes. So why is it that no church is already being forced to let those groups use their facility for them to do what the law allows them to do? It is because there is no law that someone could point to that makes the church do that, and Friday’s decision does not change that. Same-sex couples now have a constitutional right to marry, but the Court did not say those couples had a constitutional right to get married wherever they want. That being said, all churches and ministries should actively take steps to ensure that their beliefs and values are reflected in their legal documents and policies.
There are lots of other potential conflicts, such as teachers who teach family life education in public schools; accreditation and tax exemption of churches, ministries, and schools/colleges; but they are beyond the scope of what we can cover quickly.
The Political Landscape
Much can be said here that time and space do not permit. But this issue goes primarily and most immediately to the question of whether there should be a special session to “do something.” There is a lot of discussion floating around in Nashville about a special session to “do something” about the marriage decision.
A special session can be called by the Governor or by the two Speakers upon request of two-thirds of the members of both the House and the Senate. I do not expect the Governor to call a special session, and the two-thirds requirement is a very high hurdle. As a state Senator, FACT President David Fowler participated in four special sessions, and his experience is that none were good. In his view, the tenor of special sessions is unique and subjects legislators to a different kind of political pressure than that generated during a regular legislative session; it can be even less conducive to wise decisions.
Without going into detail about past experiences, it is FACT’s opinion that a special session should not be called unless a specific piece of legislation is ready to be laid on the table, the call of the session is very narrow and limited, and legislators are ready to vote on that legislation and go home as quickly as is constitutionally possible (bills must considered twice before being passed on third consideration).
Even then, we believe that an attempt will be made either to repeal or greatly limit the reach and strength of our RFRA law or to pass a statewide SOGI law. In other words, a special session could degenerate into the kind of fiasco recently witnessed in Indiana. In a matter of days, the RFRA law initially passed and initially eloquently defended by Indiana’s governor and legislative leaders was gutted and the legislature and governor caved in to a statewide SOGI law. It should be kept in mind that since Indiana, a $25 million PAC has been set up to push SOGI laws in states like Tennessee.
Citizens and clergy who want a special session need to appreciate that they must also be willing to be at the Capitol every day of that special session or at least be “on call” to be there as soon as it appears a vote will be forthcoming. Legislators will need support in light of the kind of opposition they will face, and no one should expect “the other guy” to show up. It will not be sufficient to come the first day or just one day, but every day or at every instance in which a vote is to be taken. A special session will only produce the result you want if you are there in force at every critical moment.
Perhaps a good way to determine whether a special session will bring sufficient influence to get the job done is to ask your member of the clergy if he or she will attend multiple days of a special session and actively and expressly encourage his or her parishioners to make calls, send emails, and if possible get down to the Capitol in person. If you do ask, we would value knowing what response you got.
It is our hope that no one reads the foregoing and concludes that FACT does not think actions are needed, but does not even Scripture tell us to figure out before we go to battle if our forces are sufficient for the task? Those who do not take full account of the political landscape will “go to war” without having appreciated the political topography, and will most likely be sorely disappointed to find the path more rocky and uphill than anticipated.
What Actions Should Be Taken
There are a number of ideas being discussed, from “privatizing” marriage to some kind of legislative act of “nullification.” At this time, there are no specific proposals to evaluate, but citizens and legislators should exercise extreme caution in terms of unintended consequences from changing long-established laws and the precedent that may be set going forward.
Precedents set today may be used in years to come in ways not now envisioned. The basis and rationale for all changes the legislature may make must be clearly set out to minimize future misapplication of their actions.
In this we are reminded of the words of William Blackstone in his Commentaries on the Laws of England:
“It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.”
Too often in our modern times we do not appreciate the “grounds” of the laws we pass, and then those laws are used in ways we never intended for there is no principal or ground to which they are moored. Thus, our laws are set adrift to be tossed “by every wind of doctrine” (Ephesians 4:14) that comes along; the Supreme Court has done enough damage to marriage in that regard without us compounding the problem by conceding that marriage is nothing but a contract. We may find ourselves faced with contracts we never envisioned and no rationale by which to oppose them before a future Supreme Court.