The Other Marriage Amendment

While much of the nation was focused on the debate in the U.S. Senate over a constitutional amendment to ban same-sex marriage, a similar debate has gone largely ignored at the state level. Just one day after the U.S. Senate rejected a federal marriage amendment, a similar amendment proposal for the Tennessee State Constitution was heard before the Tennessee State Supreme Court. The American Civil Liberties Union of Tennessee and other groups brought suit claiming that notice of the proposed amendment had not been published six months before the General Assembly was elected as required by law. A Davidson County Chancery Court rejected the ACLU’s argument earlier this year, and the case was fast-tracked to the Supreme Court so a decision could be delivered before November.

While supporters of the proposed amendment criticize the ACLU for challenging the amendment on technical rather than substantive issues, the issue of notice is very interesting. I spoke with several of the plaintiffs’ attorneys earlier this year after the Chancery Court decision. Melody Fowler-Green, attorney for the ACLU, explained that there is very little case law on what constitutes notice in Tennessee. Yesterday each side made compelling arguments with respect to how notice should be determined.

In Tennessee, an amendment to the state constitution must be passed by two consecutive General Assemblies. Each General Assembly has a term of two years, so the amendment process takes about four years. After it is passed in the first General Assembly, the proposed amendment must be published at least six months before the election of the second General Assembly so voters can have time to find out how their representatives would vote on the issue. This amendment was not passed by the first General Assembly until May 19, 2004, less than six months before the elections of the second General Assembly on November 2, 2004. The plaintiffs contend that this did not give them enough time to campaign against the amendment. As Ms. Fowler-Green told the court,

“It's the ACLU's position that in order to be an adequate check on legislative power and to provide meaningful notice to the people of Tennessee, that the publication must be an official act of the state with the intent and purpose of notifying them of the specific proposal.”

At first reading, the ACLU’s case seems simple and persuasive. The amendment wasn’t passed until less than six months before the election, and therefore failed to meet the notice requirements. However, the state pointed out that there was substantial media coverage of the proposed amendment after it was introduced on March 17, 2004. Attorney Byron Babione argued before the court yesterday that the plaintiffs were well aware of the amendment before the deadline rolled around, since the media coverage far exceeded the public notices that accompany most amendments. And Deputy Attorney General Gina Barham pointed out that the state constitution does not require that the measure be passed before it is publicized.

I think the ACLU has a stronger case with respect to the notice requirements. As we are often reminded by the U.S. Congress, legislation can change at the last minute. The proposed measure that was first introduced may be substantially different from the measure that was ultimately passed. While the media coverage undoubtedly made the plaintiffs aware of the proposed amendment, I don’t know if the publicity was sufficiently accurate to constitute constructive notice. However, I have a hard time seeing how the plaintiffs can claim they were harmed by the shorter time period between passage of the amendment and the next elections. As Mr. Babione argued yesterday, I don’t think the plaintiffs have standing because they weren’t substantially harmed by late notice. When I spoke to Ms. Fowler-Green and her colleagues, they acknowledged that they were aware of this proposed amendment long before it was passed. And I think the plaintiffs failed to show how their campaign or legal strategies were altered or harmed by the actions of the legislature.

Articles:
"Technicality could delay marriage amendment" from The Tennessean
"Justices hear arguments on gay marriage amendment" from The Knoxville News Sentinel