Tennessee has passed a law that, despite being just one sentence long, completely annihilates marriage equality in the state.
Republican Governor Bill Lee signed House Bill 878 into law on Wednesday. The measure simply states, “A person shall not be required to solemnize a marriage.”
This means that any government official can refuse to certify a marriage license for any reason whatsoever. Current Tennessee law states that before a marriage is legally recognized, the couple must have their marriage license solemnized by a “minister or officer.” Marriages can be solemnized by religious leaders or government officials including judges, notaries public, and elected officials.
The new law does not affect anyone’s ability to obtain a marriage license. Republican state Senator Mark Pody, who sponsored the measure in the state Senate, argued last month that the bill was not discriminatory because people can still get marriage licenses.
“It just says that a person shall not be required to solemnize a marriage,” Pody said.
But that, critics say, is exactly what undermines marriage equality. The law gives officiants the right to refuse to solemnize any marriage they disagree with. This means LGBTQ, interfaith, or interracial couples could be unable to officially marry in the eyes of the law.
“Let’s be clear—this bill is intended to exclude LGBTQ+ folks from equal protection under the law,” Molly Whitehorn, associate director of regional campaigns for the Human Rights Campaign, said last month.
Republican lawmakers introduced H.B. 878 last year. The original version of the bill stated that officials didn’t have to solemnize a marriage if that person had “an objection to solemnizing the marriage based on the person’s conscience or religious beliefs.”
Although marriage equality has been codified into federal law since December 2022, the original bill exploited a major loophole. The Respect for Marriage Act had been amended during the congressional debate process to say that religious organizations do not have to marry same-sex couples, nor are states required to actually issue same-sex marriage licenses.
Critics of the original version of the Tennessee bill said it was completely unnecessary. Tennessee law already says that religious leaders do not have to officiate weddings they object to. It appears state Republicans were listening, as they amended the bill to remove the redundant reference to religious objections, and now officials can refuse to officiate marriages for any reason, not just religious ones.
Because the bill is so broad and vague, it is unlikely to stand up to scrutiny in court. But not before it likely wreaks havoc on LGBTQ people’s ability to get married.
“Tennessee House Bill 878 would be patently unconstitutional,” Camilla Taylor, the deputy legal director of litigation for the LGBTQ legal advocacy group Lambda Legal, told CNN. “The Constitution prohibits public officials from discriminating against members of the public based on their personal beliefs.”
“Government officials can’t target people based on who they are and require them to use a different process to obtain marriage licenses relative to everyone else. The effect of forcing same-sex couples to go through a different process relative to everyone else—whether by demanding that they use a different door, or that they wait for a different public official to issue them a license would be to stigmatize them and communicate that their government thinks their marriages are less worthy than everyone else’s.”