Same Sex Marriage

A married couple is driving down the interstate going 55 mph. The husband is behind the wheel. His wife looks over at him and says, “Honey, I know we’ve been married for 15 years, but I want a divorce.” The husband says nothing but slowly increases speed to 60 mph. “I don’t want you to try to talk me out of it. I’ve been having an affair with your best friend, and I like him better than you.” Again the husband stays quiet but clenches the wheel with his hands and goes faster. “I want the car and the house.”  Again he speeds up, now to 70 mph. “I want the kids too.” He just keeps driving faster until he’s up to 80 mph.  She says, “I want the checking account and three-fourths of our savings and your retirement fund.” The husband slowly starts to veer over toward a bridge overpass piling, as she says, “Is there anything you want?” “No. I’ve got everything I need right here.” “What’s that?” He replies just before they hit the wall at 90 mph, “I’ve got the airbag.”


Marriages, especially same sex ones, have been all over the news since SCOTUS (Supreme Court of the United States) issued its opinion that such marriages are protected under the United States Constitution and all states must recognize their legality. Locally, the opinion has been discussed with even more disapproval than the recent agreement with the Iranians about their nuclear program.

One local politician, obviously not a lawyer, has been quoted as saying, in substance, “The Supreme Court has just given their opinion. We don’t have to follow it.” In my eighth grade civics class, I learned that in the United States, “our law is whatever SCOTUS says it is.” And it stays that way until the law is changed.  And if the decision interprets the Constitution, the opinion of SCOTUS is law unless our founding document is amended to change it or SCOTUS changes its mind and decides the issue differently in a later case.

A state legislator has just written that Tennessee might confront the issue by acting to nullify the offending decision or secede from the union. Of course, during the administration of President Andrew Jackson, it was decided that states cannot “nullify” federal law. And the Civil War settled the question of secession.

Another legislator has stated that our governor should be impeached because he has determined that Tennessee will accept and follow the decision of the high court. (I remember similar statements being said about Tennessee Governor Frank G. Clement when, unlike Alabama’s George Wallace and Mississippi’s Ross Barnett, he said Tennessee would follow the law by desegregating our public schools.)

In Decatur County the county clerk and her staff have resigned rather than issue marriage licenses to same sex couples.  I am certain that among our 95 counties there are scores of officials and their employees who find homosexuality and giving it recognition as acceptable under law highly offensive and against their religious beliefs.  A large number of local officials in Tennessee have given notice that they will no longer officiate marriage ceremonies for anyone.  But I doubt many county employees will take the drastic action of quitting good jobs to avoid doing what is just an administrative act not requiring any indication of approval of the marriage.


County Commissioners may conduct marriage ceremonies.  During my five years in that office, I have never been asked to perform one.  I decided long ago that if asked I would probably respectfully decline.  During my 40+ years of practicing law, I have participated in so many divorces, vows given before me might not stick.


While I was there, Vanderbilt Law School began requiring every senior student to write a lengthy thesis or dissertation similar to what is required of candidates for a PhD degree.  I wrote mine on “State Laws Against Interracial Marriages.” In 1967, 16 states had such laws.  In my paper, written in 1965, I predicted that it was inevitable that SCOTUS would declare such laws unconstitutional.  In Loving v. Virginia, it did exactly that.

The Lovings argued that Virginia’s anti-miscegenation statute violated their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and interracial marriages celebrated in states where they were legal should be accepted by every state under the Full Faith and Credit provision of the Constitution.  Virginia argued that marriage laws were matters which must be left to the states under the Tenth Amendment which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

The court in Loving found no legitimate state purpose that could justify the racial classifications.  Virginia’s anti-miscegenation statute was held unconstitutional.  “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of [equal protection].”

These arguments and judicial statements should be very familar to those who have read about the same sex case or actually read the opinion, which says:  “The right to marry is a fundamental right inherent in the liberty of the person.  Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that liberty.”

I write about the Loving case just to put some things in perspective.  Although you cannot tell it from talk around here, the decision on same sex marriage is not nearly as controversial as was Loving in 1967 or the Brown case in 1954, which led to desegregating public schools. In both cases public opinion was strongly against those decisions, especially throughout the South.  Actually, making interracial marriage legal was strongly disapproved by most Americans everywhere.  Then, as now, opponents of SCOTUS referred to the Holy Bible to support their positions.

In 1965 when I applied for a marriage license in Atlanta, I had to sign an affidavit stating that I did not have blood that was as much as one-eighth “colored.” I never saw my grandfathers who died before my birth, but I just took a chance and signed it anyway.

The marriage case just decided, Obergefell v. Hodges, makes national what was already legal in two-thirds of our states.  Polls show that 60 percent of Americans support making same sex marriage legal. Looking at our country as a whole, Obergefell hasn’t set everyone’s hair on fire.  Years from now, when people look back at that case, as we now look at Loving, a much more controversial marriage case, they’ll see that the world has not stopped turning.


As soon as there were same sex marriages, same sex divorces were sure to follow.  In 2014 in Roane County, Tennessee, Mr. Borman sued his spouse, another Mr. Borman, for divorce.  The couple married in Iowa where such unions are valid.  The state entered the case to argue against it on the grounds that Tennessee did not recognize same sex marriage and granting a divorce would violate our law.  The circuit judge agreed.  On appeal, the case was put on hold to see what SCOTUS would do with Obergefell. Now the Court of Appeals has ordered the parties to file briefs on the effect of Obergefell on this divorce case.  A representative of the office of the State Attorney General has said they will no longer oppose the divorce.  So it seems certain that the case will proceed to be handled like other divorce cases. But I’ll bet it gets a lot more publicity.


As you can see from the beginning of this column, I couldn’t find a joke about same sex marriage, but  eventually, as with everything else, there will be some.

This column discusses legal issues of general interest and does not give legal advice on any reader’s personal situation.   The law is not a one-size-fits-all hat.   Consult a lawyer of your choice.

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