523 – Marriage and the Fourteenth Amendment

In 2015 the Supreme Court decided in the case Obergefell v. Hodges that the Fourteenth Amendment protected the right for homosexuals to get married. In 2026 the State of Tennessee is working on legislation that points out that private citizens and organizations are not bound by the Fourteenth Amendment, and therefore by Obergefell.

Obergefell v. Hodges

In 2015 the Supreme Court heard the case Obergefell v. Hodges, and decided:

Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

Obergefell v. Hodges

Like many others, I argued that the Fourteenth Amendment said no such thing. As Justice Scalia stated in his dissent:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Obergefell v. Hodges – Scalia Dissent

To me the issues isn’t so much the making up of liberties not mentioned in the Constitution. After all, the Ninth Amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

U.S. Constitution, Amendment IX

To me the true problem with the Obergefell decision was and is the court’s decision to redefine the word “marriage” in direct opposition to the people of several states. Also, the court claimed to end the debate going on at the time about the definition of marriage. The court came to this decision by claiming that the right to marry is a liberty, regardless of the legal definition of marriage. The majority completely ignored the liberty of the people who would be forced to recognize and license things that were not marriage as if they were. As Justice Robert’s pointed out in his dissent, there is no logical reason why this expansion of the definition of marriage would not one day be expanded even further.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” … why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,”… why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,”… serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?

Obergefell v. Hodges – Roberts Dissent

While the court claimed that state laws, even state constitutions, defining marriage as one man and one woman were unconstitutional, several states disagreed. One of those states in the Obergefell case was Tennessee.

TN HB1473

More than ten years after the Obergefell decision, the Tennessee legislature is considering pushing back on part of this judicial overreach. To start with, we have to realize that it’s still the policy of the State of Tennessee to only recognize opposite sex marriage. From the Tennessee Code Annotated, Section 36-3-113:

(a) Tennessee’s marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.

Tennessee Code Annotated, Section 36-3-113

As I understand it, the various state agencies and subdivisions do issue and recognize same-sex marriage licenses due to the Obergefell decision. However, HB1473 would codify the limitations of that decision.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 36-3-113, is amended by adding the following new subsection:

(e) Private citizens and organizations are not bound by the Fourteenth Amendment or by the Supreme Court’s purported interpretation of the Fourteenth Amendment in Obergefell v. Hodges, … and no private citizen or organization in this state is required to recognize a marriage or a purported marriage between individuals of the same sex, notwithstanding any other law

TN HB 1473

Have you ever had one of those moments when the truth simply explodes in your head? That was my reaction when I first read this legislation. I’m sure someone out there is saying, “But wait, Paul, the Constitution is the supreme law of the land. How can a state simply ignore it?” However, it’s not ignoring the Constitution, it’s being aware of the details. For example, Section 1 of the Fourteenth Amendment, which the Obergefell court based their decision on, states:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV

So HB1473 is correct that the Fourteenth Amendment binds states, not private citizens or organizations. And since the Supreme Court cannot make law, or amend the Constitution, their decisions based on the Fourteenth Amendment similarly cannot be binding on private citizens or organizations.

HB1473 also deals with the Board of Judicial Conduct.

SECTION 2. Tennessee Code Annotated, Section 17-5-301, is amended by adding the following new subsection:

(k) Notwithstanding any other law, the board shall not discipline, sanction, or threaten to discipline or sanction any person for declining to celebrate or officiate at a marriage or commitment ceremony that falls outside the definition of marriage provided in this code.

TN HB 1473

Meaning the Board of Judicial Conduct could not sanction judges who refuse to officiate at marriage ceremonies that fall outside of the traditional definition of marriage. Since the bill states that the board shall not disciple any person, does that mean that a judge who upholds the right of an individual to refuse to celebrate or officiate at same-sex marriage would also be protected?

Conclusion

Sometimes the simple answer is the most powerful. While the fact that the Obergefell decision is a violation of the Constitution of the United States seems lost on most people, the State of Tennessee is considering using their legitimate state power to protect their citizens.

While claiming to protect the liberty of those who wish to redefine marriage by fiat with the Fourteenth Amendment, the court infringes on the liberty, protected by the Fifth Amendment, of those who wish to maintain the traditional definition protected. The Tennessee Legislature is considering legislation that would protect that liberty. And they’re using a little considered fact about the Fourteenth Amendment to do it.

As of this writing, the Tennessee House has passed HB1473 and sent it to the Senate. The Senate has deferred consideration by their Judiciary Committee until the next legislative session in 2027.