NASHVILLE, Tenn. — A bill that passed the state House during the 2023 regular General Assembly, but was deferred in the Senate for around a year, was signed into law by Governor Bill Lee on Wednesday.
HB 0878 was introduced by Rep. Monty Fritts (R - Kingston) in January 2023. The House passed an amended version of the bill, which adds a new subsection to Tennessee law on marriages. The proposed subsection is available below.
(m) A person shall not be required to solemnize a marriage.
County clerks and their staff would be included in that subsection.
"As more of these discriminatory laws get passed, more and more people are experiencing heightened anxiety, depression, and isolation. And that's dangerous, that is harmful," said Shannon Brown, a therapist and community advocate.
The Tennessee Senate adopted the House version of the bill and passed it mostly along party lines. While defending the bill, Sen. Mark Pody (R - Lebanon) said on the Senate floor that the bill did not affect whether clerks could issue marriage licenses.
"It just says that a person shall not be required to solemnize a marriage. This has nothing to do with getting a license, this has nothing to do with the clerks required to give a license," he said.
The original version of the proposal specifically said people would not be required to solemnize a marriage if they had objections to it based on their "conscience or religious beliefs."
When the House was discussing the bill in 2023, several lawmakers and advocates spoke against it, concerned that it would enable county leaders to refuse to solemnize same-sex marriages based on personal beliefs. In 2023, Fritts defended the bill by saying it was meant to document that people could not be "forced to solemnize a marriage."
"What I think is problematic about this law is it could give county clerks some discretion, and in fact incentivize them to not solemnize a marriage. A county clerk is quite often an elected official, and that person may feel some pressure based on let's say, whether it's someone in a rural county, to use the law, the statute, to deny a marriage ceremony to a disfavored minority group, like let's say a gay couple," said Akram Faizer, an associate professor of law at Lincoln Memorial University.
He said since a decision more than 50 years ago, the Supreme Court improved protections for minority groups. As a result, he said the law could be problematic.
"There's nothing in the law textually that seems to be singling out anyone for purposes of an equal protection violation. But as applied, if you look at it, it probably would cause concern for some sexual minorities in this state," he said. "They may feel that the law is targeted at them by giving license to use freedom of religion as a means to discriminate against them."
In late December 2022, President Joe Biden signed gay marriage legislation into law at the federal level. That law was designed to safeguard gay marriages should the U.S. Supreme Court reverse the Obergefell v. Hodges decision, which legalized same-sex unions. It also protects interracial marriages.
The law did not require states to issue marriage licenses to same-sex couples but says states will need to recognize marriages from elsewhere in the country.
