The Supreme Court ruled definitively last June that banning same-sex marriage is a violation of the U.S. Constitution, but some lawmakers in Tennessee don’t care. This week, they will consider a bill that would attempt to nullify the Obergefell decision and void the marriages of same-sex couples, and its passage could cost the state billions of dollars in federal funding for programs that help the state’s neediest.
Rep. Mark Pody (R) and Sen. Mae Beavers (R) originally filed their “Tennessee Natural Marriage Defense Act” back in September, introducing it at a “religious liberty” rally. HB 1412/SB 1437 dictates that “natural marriage between one (1) man and (1) woman as recognized by the people of Tennessee” would “remain the law in Tennessee, regardless of any court decision to the contrary. Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges, is unauthoritative, void, and of no effect.”
The legislation lays out the lawmakers’ anti-gay biases — in particular, by comparing Obergefell to other decisions. According to the bill, the “United States Supreme Court is not infallible and has issued lawless decisions which are repulsive to the Constitution and natural law, including [Dred] Scott v. Sandford; Buck v. Bell; Korematsu v. United States; Roe v. Wade; and most recently, Obergefell v. Hodges.” These were decisions upholding slavery, the sterilization of people with intellectual disabilities, the internment of Japanese Americans, and a woman’s right to an abortion, respectively.
“I believe I’m supposed to be speaking to the unsaved, to the people that are performing same-sex marriages, for the people involved in same-sex marriage.” Pody said at an event last month. “It is wicked, it is wrong, and I am doing the best I can to warn them.”
The legislation prohibits any state or local agency from recognizing the effect of such decisions, and also requires the attorney general to defend any official who is sued for not recognizing a same-sex couple’s marriage.
Passing the law could cost Tennessee more than $8.5 billion, according to the bill’s fiscal note produced by the General Assembly’s Fiscal Review Committee. This sum would largely come in the form of federal funding that would be cut for the state’s health care program (TennCare), the Supplemental Nutrition Assistance Program (SNAP), and Temporary Assistance for Needy Families (TANF).
The state would also assume all fees for the countless legal battles the bill guarantees, but “the Attorney General cannot reasonably estimate the impact that would result.” Recent legal bills for states that fought same-sex marriage include $2 million in Kentucky, $1.9 million in Michigan, $1.1 million in Ohio, and $500,000 in Arizona. Tennessee already faces a bill of $2.3 million for its own marriage fight.
Pody and Beavers are undeterred. At a rally at the Capitol on Tuesday, Pody insisted, “We cannot just let this go by. Morally I believe we have to stand.” He also called the fiscal note “completely bogus.” The rally was attended by a hate group that drove around a truck billboard that read, “The Cost of Tolerance: AIDS.”
Pody plans to introduce an amendment that makes some changes as to how the bill would be implemented, but not its substantive purpose or effect.
In the history of the United States, the Supreme Court has only ever rejected states’ attempts to nullify federal law. Most recently, the Court rejected efforts by states like Arkansas and Louisiana to maintain school segregation in the 1950s following the decision in Brown v. Board of Education.
Update:
After hearing 90 minutes of testimony, the House Civil Justice Committee rejected the bill Wednesday afternoon. Pody and Beavers have another bill (SB 1790/HB1828) in the works that could be a back-up plan with a similar impact.