I was at the Tennessee Capitol yesterday to see the first, and last, discussion of House Bill 1412, “The Tennessee Defense of Natural Marriage Act” in the House Civil Justice Subcommittee. I was one of about 150 supporters of the bill who showed up to watch, and most of us overflowed out of Hearing Room 31 into the hall. As the subcommittee began the order of business, we were joined by seven or eight activists who were protesting the bill. Despite our differences, we all squeezed tightly together to watch 90 minutes of wrangling on the monitor, and I don’t think either side could have counted the outcome as a serious victory.
For those that don’t know the backstory, HB1412 was a fairly simple bill, short and to the point. You can read it here in its eight-page entirety, but I’ll summarize it. It consists of seven pages of WHERASes, decrying the Supreme Court decision Obergefell v. Hodges and judicial supremacy in general, quoting historical commentary by legal scholars on the Constitutional limits of Federal courts, and praising the Tennessee Constitution’s own statement on marriage.
The final page contains the three actionable sections of the bill, which basically just state that Tennessee will continue to obey its own Constitution, and that it will defend its citizens and employees who obey their own Constitution. Pretty strong stuff, right? Imagine, a bill just flat-out quoting the Constitution instead of hiding its intent in hundreds of pages of dense vaguery. For reference, here is the relevant language from Article XI, Section 18 of the Constitution of Tennessee:
“The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.”
So, given that Article XI, Section 18 so clearly declares Obergefell v. Hodges void and unenforcable, do we need legislation to remind our state of its own Constitution? That, in a nutshell, was the discussion. All of the members of this particular subcommittee are professing Christians, and with traditional marriage supporters outnumbering opponents twenty to one in the packed out hallway, none of them spoke a single word in favor of homosexual marriage.
In fact, Chairman Jim Coley (R) and members Bill Beck (D), Mike Carter (R), and Jon Lundberg (R) all stated a great desire to defend traditional marriage, to tell the Supreme Court where its limits were, and to uphold the great principles of both the United States and Tennessee Constitutions. Only Sherry Jones (D) was silent. Why then did this bill fail to move on with only a single vote in favor?
Well, the main arguments against were simple. Mike Carter made most of them, and despite being a former judge, he repeatedly assured us that his priority was to limit the authority of judges. His other priority was to defend traditional marriage, but he refused to support this bill because he claimed that it wasn’t the One Best Way to do that. It reminded me of how we kids tried to weasel out of the responsibility of kitchen cleanup.
“Well, I can’t possibly do the dishes until someone has put the leftovers in the fridge, Mother. No one, I promise you, despises dirty dishes as much as I do, and no one is nearly so happy to clean them as I, but I just want to see chores done in the best possible way. As soon as someone else puts the leftovers away, I will… come back and… move on to the next step with great joy and diligence!”
It was clear that lots of discussion had already happened behind the scenes, but the part that we, the public, could see was pretty much limited to speculating about whether this legislative action was more effective than a hypothetical judicial or executive action that might happen… someday. It was also pointed out that defying our Federal government might result in serious hypothetical consequences, and no one on the committee wanted their name on that.
Of course, I do realize that there are many practical, tactical, and strategic considerations that must go into passing bills like this, and I’ll be the first to admit that I don’t know all the potential ramifications of a bill that reminds Tennessee to obey its own Constitution. Nevertheless, I did feel a little disappointed that a bill reminding Tennessee to obey its own Constitution couldn’t even get two measly votes to rub together. Not even in a subcommittee of Christian legislators who were constantly (except for Sherry Jones) assuring us how they desperately wanted everything that the bill had been written to accomplish.
The entire afternoon reminded me of Yes, Minister’s Four Stage Strategy for delaying uncomfortable decisions and shifting responsibility:
1. Say that nothing is going to happen.
2. Something may happen, but we should do nothing about it.
3. Maybe we should do something, but there’s nothing we can do.
4. Maybe there was something we could have done, but it’s too late now.
Subcommittee members were doggedly sticking to point 3, with one minor modification: “Maybe someone should do something, but there’s nothing we can do.” Again, it would be wonderful to see our Governor, Chief Justice, Attorney General, or anyone from any branch stand firm on this issue. In the last seven months, however, our elected officials have simply been repeating point 3. And that is perhaps the best argument that we do, in fact, need a bill to remind us of what our own Constitution already says, before we all get stuck with point 4.