The next Roe v. Wade?: Even Supreme Court can't end same-sex marriage debate

The next Roe v. Wade?: Even Supreme Court can't end same-sex marriage debate

November 9th, 2014 by Kevin Hardy and Claire Wiseman in Local Regional News

Wives Ashley and Dawn Collins, From right, hold each other at a rally that responded to the federal court opinion that upheld state bans on gay marriage on Nov. 7, 2014, at the Walnut Street Bridge in Chattanooga.

Photo by Maura Friedman /Times Free Press.

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Document: 6th Circuit Gay Marriage Ruling

The 6th Circuit Court of Appeals upheld anti-gay marriage laws in a landmark announcement on Thursday that creates a nation divided now by two sets of rules.

If gay marriage were legalized in Tennessee, some estimates say as many as 5,000 same-sex couples would marry within the first three years.

So far, 32 states have legalized same-sex marriage. Couples in Oklahoma, Utah and three other states celebrated appellate court decisions that allowed them to wed this summer. It seemed inevitable that Tennessee would follow.

And Tennesseans were preparing. More than 200 people across the state planned mass weddings for "Day One" of same-sex marriage. Chris Sanders, executive director of the Tennessee Equality Project, said speedy marriages help anchor the institution in the case of future legal battles.

"But we don't have a Day One yet," he said.

A ruling issued Thursday by the 6th U.S. Circuit Court of Appeals bucked the judicial trend by upholding gay marriage bans in Tennessee, Ohio, Michigan and Kentucky. From here, the cases seems likely to be appealed to the U.S. Supreme Court, where the constitutionality of same-sex marriage could be determined once and for all.

People on both sides of the debate accept the inevitability of the Supreme Court's final decision on the matter.

"I believe it's destined for the Supreme Court," said Carl Greene, the pastor of St. Marks United Methodist Church, where members are waiting to marry.

Greene said last week's decision means those who have been waiting to wed will need to wait even longer.

"The momentum has picked up so rapidly," he said, "even I got a little more hope. I thought maybe now, maybe Tennessee."

R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, said he looks at the Supreme Court's 2013 decision striking down the federal Defense of Marriage Act and fears it means the court has already tipped its hand.

"I'll be very honest to say I do not feel comfortable with this in the Supreme Court's hand because the Supreme Court has already revealed its trajectory," Mohler said.

Mohler sees the same-sex marriage debate as the new Roe v. Wade. That landmark decision extended the constitutional right to privacy to include a woman's right to decide whether to have an abortion, seemingly settling the issue. Yet Mohler thinks abortion is a more contentious issue now than it was in 1973 when the ruling was handed down.

Even if the legal battle over gay marriage comes to a close, Mohler said, the moral argument will remain. And conservative churches aren't going to back down. Southern Baptists make up Hamilton County's largest denomination, with more than 75,000 members.

"The court may have the final legal say," Mohler said. "But it doesn't have the final moral say."

Tennessee's Republican governor, Bill Haslam, has said he doesn't support same-sex marriage. The state's constitutional ban affects 5,449 couples whom the Williams Institute estimated would get married within the first three years of legalization.

The Williams Institute, a think tank that studies gender identity law and public policy, estimates the state would see $36.7 million in spending on wedding arrangements and tourism over three years by resident same-sex couples and their guests. That would create about $3.5 million in added sales tax revenue.

Legal analysts say the Supreme Court's decision will be the end of the line.

The cases at issue in Thursday's ruling included three couples from Tennessee who wished to have their out-of-state marriages recognized here. A lower court granted them that right, but the state appealed. In its majority opinion, a three-judge panel from the 6th Circuit Court of Appeals upheld the ban and said the right to decide should stay with the states.

"I think it's likely that the pitch at the Supreme Court is going to be for recognition of a constitutional right," said Cincinnati attorney Pierre Bergeron, who runs a blog following the appellate court's movement.

If the Supreme Court upholds this most recent ruling, however, the decision will be left up to the states.

"It'll be a mess," Bergeron said.

Contact staff writer Claire Wiseman at clwiseman@timesfreepress.com or 423-757-6347.

Contact staff writer Kevin Hardy at khardy@timesfreepress.com or 423-757-6249.

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