ANALYSIS: NOT EVERYONE LIKES IT, BUT ALL AGREE IT’S A BIG DEAL,
Legal experts and political figures took different views of the U.S. Supreme Court’s landmark ruling Friday extending constitutional protection to same-sex couples to marry but agreed that the result is far-reaching and important.
Tennessee Republican leaders broadly criticized the ruling for overturning Tennessee’s state constitutional amendment banning the state from approving and recognizing gay marriage, ratified in 2006 by a margin of 81 percent to 19 percent.
But University of Tennessee law professor Michael Higdon, who has published research on issues related to gay rights and same-sex marriage, said the court’s ruling was “sound and thorough.
“The biggest objection of people who are against same-sex marriage is that this should be left to the people, it should be put to a vote. But that’s not how civil rights work. If you think about segregation — Brown v. Board of Education — if they had put that to a vote, 80 to 90 percent of the Southern states would have upheld segregation at the time. It didn’t work that way.
“There’s certain rights that the majority just can’t control. They’re inherent to the individual, the Constitution protects them and that’s what the court said today: The right to marry is a fundamental right. It’s not subject to popular vote.”
Higdon said the ruling is “absolutely a landmark opinion because it’s the first that truly recognized gay couples as deserving of legal protection.
“That is huge when you think about a class of people who have faced discrimination for a long time, when you think about young people who have faced bullying on the basis of sexual orientation — to have the highest court in the land say ‘We see you and you have dignity in the law.’ That’s a big deal.”
Higdon, state Attorney General Herbert Slatery and others said there’s no question the 2006 Tennessee amendment is now null and void. Its text will remain, unenforceable, until voters remove it in some future constitutional referendum when the issue is less controversial, as has occurred with other provisions in the constitution over the state’s 219-year history.
UT political science professor Richard Pacelle, chairman of the school’s political science department and an expert on Supreme Court decisionmaking, said the ruling is good for the GOP — even if its leaders won’t publicly acknowledge it.
“In terms of public opinion, this is not a good issue for a party to be on the wrong side of right now,” Pacelle said. “The public opinion polls show that about 60 percent of the public is in favor of or at least tolerant of same-sex marriage and that’s growing every year. Republicans have to figure out a way to position themselves on this issue and some of them are out there already appealing to the base and to fundamentalists who don’t support this.
“But in a general election, this is a losing issue for Republicans and I think they should be grateful the Supreme Court is going to take the heat on this and they don’t have to. I think you’ll find a lot of moderate Republicans ... saying I may not support this decision but the Supreme Court’s made the decision and therefore we have to abide by it, we have follow the law.
“It’s a generational issue also: Young Republicans under 30 are very tolerant of same-sex marriage. The party risks alienating them as well as alienating independents who break almost 70 to 30 in support of same-sex marriage,” Pacelle said.
Slatery said his advice to public officials who are empowered to solemnize marriage is to “not discriminate” if they do perform marriages — even though he said the law does not distinguish between public officials and ministers in their discretion to perform marriages.
“There’s no distinction on that,” Slatery said. “Our statute is purely discretionary regardless of whether it’s a state official or not. But I think in light of this decision, that’s a serious discussion.”
What is clear, the officials agree, is that all county clerks must issue marriage licenses to same-sex couples and the state Department of Public Health must issue them marriage certificates after the marriage is solemnized. The state health department said Friday it is also complying with the law.