For the first time since the Supreme Court overturned the federal Defense of Marriage Act in June of 2013, a court has ruled that the constitution does not protect gay couples’ right to get married.
The decision, issued by Roane County Circuit Judge Russell E. Simmons Jr., of Kingston, Tennessee, holds that Tennessee’s gay marriage ban is rationally related to state interests and thus does not violate the Constitution’s equal protection clause. “Marriage,” Simmons writes, “simply cannot be divorced from its traditional procreative purposes. … The promotion of family continuity and stability is certainly a legitimate state interest.” Simmons also held that:
There is nothing irrational about limiting the institution of marriage for the purpose for which it was created, by embracing its traditional definition. To conclude otherwise is to impose one’s own view of what a State ought to do on the subject of same-sex marriage.
Simmons does not attempt to square his ruling with the holding of United States v. Windsor, in which the Supreme Court held that a federal gay marriage ban “violates basic due process and equal protection principles.” He does not explain why Lawrence v. Texas—which praised the “enduring … personal bond” of gay relationships—does not undermine his logic. And he does not elucidate how his decision could possibly coexist with Romer v. Evans, in which the court held that laws designed to disadvantage gay people qualify as illegitimate, unconstitutional animus.
In ruling against gays, Simmons also contradicts nearly 30 other marriage-related rulings—including two by federal appellate courts—which found a constitutional right to gay marriage. His ruling, however, may signal the beginning of some rough sledding for gay marriage advocates. Last week, a panel on the 6th Circuit, which covers Tennessee, seemed poised to rule against gay marriage. If they do so, their decision would all but force the Supreme Court to confront the issue head-on.
Perhaps it’s best, then, that a split on the gay marriage question is finally emerging within the judiciary. The more judges buck the court’s clear command in Windsor, the sooner the justices can settle this issue once and for all. Justice Anthony Kennedy, author of Windsor, Lawrence, and Romer, once famously wrote that “liberty finds no refuge in the jurisprudence of doubt.” As Simmons’ ruling illustrates, it’s high time for the court to clear away the doubt surrounding gay marriage and secure liberty for gay people across the country.