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Tennessee GOP quietly overturns marriage equality by giving officials the right to refuse
(www.advocate.com)
this post was submitted on 27 Feb 2024
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Sure, but is issuing a marriage license "solemnizing" the marriage?
The real issue here is that public employees are allowed to bestow different services on different members of the public just based on how they feel. In a Good Old Boys jurisdiction, this could in practice outlaw gay marriage because all it takes is a consistent hiring practice to only get the "right kind" of clerk who won't issue gay marriage licenses, and it becomes impossible to get one. That can happen in significant percentages of jurisdictions.
Sure, it violates equal protection Constitutional rights, but somehow I think this Supreme Court would find that First Amendment "right to express religious bigotry" wins if those are in conflict.
Edit: I don't have time to review the statute but Shadrach makes good points. If that's accurate to the statute, that wouldn't allow clerks to refuse to issue marriage licenses.
No. The County Clerk's office issues marriage licenses before the marriage is solemnized, and the officiant who solemnizes the marriage then turns the license back in, completed.
Basically you get issued the license to permit the marriage, someone accepts that paperwork and solemnizes the marriage (usually in some variety of ceremony, as befits your cultural and religious preferences), then that person (the officiant) completes the license and submits it back to the state to inform them it's been done.
The Tennessee law in question essentially says that just because someone is allowed to officiate a marriage in Tennessee doesn't mean they are required to if they have some issue with the pairing. AKA you can't force a preacher from a decidedly anti-LGBT church to marry you just because they are a preacher. Likewise for not being able to force the local Grand Wizard to solemnize your interracial marriage. Or any other reason someone might not want to officiate literally every marriage presented to them.
Does it? It's not a state employee performing their job function that's given this leeway. The County Clerk is still required to issue the marriage license and is still required to accept and process completed ones, even if they disagree with those pairings.
It's the person performing the wedding that is given leeway to decide who they are willing to marry, and the options there are broad enough that it doesn't meaningfully restrict you (there are about 102,000 notaries public as well as an assortment of current and former elected officials and literally any clergy of any faith).
https://order.spaghettimonster.org/ordination/
36-3-301(a)(2): Persons receiving online ordinations may not solemnize the rite of matrimony.
They already thought of that.