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In Tennessee, A Fundamentalist Attorney Is Attempting To Undo Marriage Equality

Marilyn Drew Necci | January 16, 2020

Topics: anti-LGBTQ hate groups, David Fowler, Family Action Council of Tennessee, Focus On The Family, marriage equality, marriage licenses, Obergefell v. Hodges, US Supreme Court

By sending letters demanding county clerks cease issuing marriage licenses to same-sex couples, Tennessee attorney David Fowler is setting the stage for a lawsuit challenging marriage equality in Tennessee and beyond.

Last week, Tennessee attorney David Fowler sent a letter to all 95 of Tennessee’s county clerks demanding that they cease and desist issuing of marriage licenses to same-sex couples. His stated reasoning is that the clerks are violating Tennessee’s constitution.

Tennessee is only one of several states in the US that have anti-marriage equality clauses written into their constitutions; Virginia, as it happens, is another. However, in light of the federal precedent set by the Supreme Court’s 2015 Obergefell v. Hodges decision, which made marriage equality the law of the land throughout the US, this should not matter. At the time of that decision, Tennessee Attorney General Herbert Slatery stated that Tennessee was required to abide by the Supreme Court decision regardless of the constitutional provision.

Nonetheless, Fowler is making the attempt to legally block same-sex marriages in Tennessee based on that exact constitutional provision. In an interview with the Washington Blade, Fowler rejected the statement of the Attorney General, stating, “It is indisputable that no court has declared the provision in Tennessee’s Constitution unconstitutional and enjoined its enforcement.” He then cited an obscure 1984 opinion by a previous Attorney General stating that a law must be considered constitutional “until it is declared unconstitutional by a court of competent jurisdiction.”

Of course, Fowler’s point here is invalidated by the fact that both the Supreme Court and Tennessee District Court Judge Aleta Arthur Trauger have released separate injunctions forbidding the enforcement of Tennessee’s constitutional provision against same-sex marriage.

David Fowler in 2012. Photo by Brian Stansberry, CC BY 3.0, via Wikimedia

Fowler, a former Republican state Senator for Tennessee, is in this case serving as general counsel for the Family Action Council of Tennessee’s Constitutional Government Defense Fund. That group is associated with anti-LGBTQ hate group Focus On The Family.

The letter gives a deadline of Feb. 17 for the Tennessee state government to comply with its demands. And while Fowler has not directly stated that he and the group plan to sue Tennessee’s county clerks, he did state in his letter to all 95 clerks that the ministers he represents are considering “what steps should next be taken by them… to be assured that they are not affirming a form of civil marriage contrary to their beliefs.” So legal action may indeed be forthcoming.

This would not be the first time Fowler has attempted legal action to invalidate same-sex marriage in Tennessee. In 2018, he sued Tennessee’s Williamson County, arguing that the Obergefell v. Hodges decision had invalidated all of Tennessee’s state laws concerning religion. That case was dismissed.

Nonetheless, this has to be concerning for the LGBTQ communities of both Tennessee and Virginia, as well as those of any other state with anti-marriage equality clauses still written into their constitution. During the Trump administration, the makeup of the Supreme Court has changed significantly, and there is some concern that a case like Fowler’s, if taken to a high enough court, could reverse the precedent set by Obergefell v. Hodges and bring all those anti-marriage equality clauses back to life.

National Center For Lesbian Rights legal director Shannon Minter dismissed these concerns in an interview with the Washington Blade, saying, “This is a political stunt, not a serious legal threat… If Fowler actually followed through on filing a lawsuit, it would be thrown out. Marriage equality is the law of the land, including in Tennessee.”

For our sakes, let’s hope Minter is correct.

Top Photo by Sixflashphoto, CC BY-SA 4.0, via Wikimedia

Asking For Race On Marriage License Application Is Unconstitutional, Judge Rules

Adrian Teran-Tapia | October 16, 2019

Topics: 14th Amendment, Brandyn Churchill, marriage licenses, Rockbridge County, Rossie D. Alston Jr, Sophie Rogers, US District Court, Victor M. Glasberg, Virginia State Registrar

52 years after Loving v. Virginia, the Commonwealth was still requiring couples to state their race when seeking a marriage license. That’s why three Virginia couples filed suit against the state government.

Last month, Brandyn Churchill and Sophie Rogers, a Lexington couple planning to marry later this month, joined with two other Virginia couples to file suit against the circuit court clerks of two counties and the Virginia State Registar over a state law that requires people obtaining a marriage license to list their race. And last Friday, a US District Court Judge declared the law unconstitutional.

“Requiring Plaintiffs to disclose their race in order to receive marriage licenses burdens their fundamental right to marry,” wrote Judge Rossie D. Alston Jr. in a ruling forbidding Virginia from enforcing the law. Alston ruled that the requirement violated Virginians’ right to due process under the 14th Amendment.

It has been 52 years since the case of Loving v. Virginia, in which the Supreme Court struck down state laws banning interracial marriage — not only here in Virginia, but throughout the United States. Yet the Commonwealth is still dealing with racial issues pertaining to marriage.

After refusing to state their race on their marriage license application, Churchill and Rogers were denied a marriage license in Rockbridge County. The suit, which was filed by Alexandria civil rights lawyer Victor M. Glasberg, challenged the constitutionality of the law, stating that “The requirement reflects a regulatory scheme embodied in the Virginia Racial Integrity Act of 1924, originally called ‘An Act to Preserve the Integrity of the White Race.’ The requirement to identify by ‘race’ uses terms grounded in ignorance and bigotry, not in science.”

The Rockbridge County application listed 230 potential racial categories, several of which were outright racial slurs. These included Aryan, Hebrew, Islamic, Israelite, Jew, Mestizo, Mulatto, Nordic, Quadroon, Red, and Teutonic.

In response to the lawsuit filed by Glasberg and the three couples, Virginia Attorney General Mark Herring released a legal opinion stating that couples can decline to answer any race-related questions when obtaining a marriage license. However, due to the current Virginia law, he stated that court clerks must still ask the question. 

Clerks Michelle Trout of Rockbridge and Paul Ferguson of Arlington, both of whom were named in the suit, pointed this out when the original issue was raised. They stated that, because it is a state law, they must comply with asking the question whether they agree with it or not. 

“It is my conclusion that [the law] does not require a clerk to refuse to issue a marriage license when the applicant declines to identify his or her race,” stated Herring, “and that clerks should issue a license regardless of an applicant’s answer or non-answer to that inquiry.”

In the wake of Herring’s statement, the Division of Vital Records revised their forms to make it clear that applicants may decline to answer race-related questions.

The race question was originally removed from Virginia marriage license applications by the General Assembly in 2003. However, it was reinstated in 2005, and has been on the applications ever since.

Glasberg was pleased at the case’s outcome. However, he found it unfortunate that the suit had to be brought in the first place. “We’re very pleased, of course,” he told the Richmond Times-Dispatch. “The only unfortunate part is that it took a United States district judge to strike a Jim Crow provision that the state of Virginia insisted on defending in court.”

Additional reporting by Marilyn Drew Necci. Photo: Brandyn Churchill and Sophie Rogers, via Facebook

Four Percent of Marriages in Virginia Have Been Same-Sex Unions

VCU CNS | September 30, 2019

Topics: marriage equality, marriage licenses, same-sex marriage, same-sex marriage in Virginia, Virginia Department of Health

Since marriage equality came to Virginia, a significant amount of the marriages taking place in the state have been same-sex marriages.

Same-sex couples have made up 1 of every 26 marriages in Virginia since such unions were legalized in the commonwealth in 2014. In a half-dozen localities — ranging from cities such as Richmond and Norfolk to rural communities like Buena Vista — same-sex couples represent approximately 1 of every 15 marriages.

Norfolk, for example, recorded about 12,400 marriages from 2014 through 2018, according to the Virginia Department of Health. About 850 of those weddings were same-sex marriages, the agency’s data showed.

That means same-sex couples constituted almost 7 percent — or about 1 of every 15 marriages — in Norfolk.

George Schaefer, the Norfolk Circuit Court clerk, offered several possibilities why his locality is so popular with same-sex couples. At the top of his list was convenience.

“We are centrally located within the Hampton Roads region,” Schaefer said. “You can get a marriage license at any courthouse in Virginia. We may be the most convenient location. Furthermore, we have a marriage commissioner on site whose office is literally 15 feet from the counter.”

Schaefer also cited pent-up demand for same-sex weddings in Southeastern Virginia.

“Gay couples in heavily populated Northern Virginia who wanted to be married may have already gone across the border (to Maryland and Washington, D.C.) to legally wed by the time the (U.S. Supreme) Court authorized it in Virginia in October 2014,” Schaefer said.

Same-sex marriage was legalized in Virginia on Oct. 6, 2014, when the Supreme Court let stand a lower court ruling that declared the state’s ban on such marriages unconstitutional. The ban had been challenged by two men who wanted to get married in Norfolk.

On June 26, 2015, the U.S. Supreme Court struck down all state bans on same-sex marriage.

Like Norfolk, Charlottesville and Roanoke also had relatively high proportions of same-sex marriage — about 1 in 15 weddings, according to a Capital News Service analysis of the Health Department’s data. Then came Richmond, where 1 in 16 marriages was same-sex.

Of the approximately 8,960 marriages recorded in Richmond from 2014 to 2018, nearly 565 were same-sex.

Edward Jewett, the Richmond Circuit Court clerk, says same-sex couples apparently see the capital city as inviting.

“As the clerk’s office in an urban locality, we may have been perceived as a welcoming place to get them [marriage licenses] at first,” Jewett said. “But as things have become routine, things have now spread out. The Charlottesville clerk and I still have a friendly disagreement as to which of us issued the first license.”

Although each locality has a different set of forms to obtain a marriage license, most require the applicants to circle bride, groom, spouse 1 or spouse 2.

Between 2014 and 2018, same-sex couples made up about 11,360 of the 300,865 marriages recorded in Virginia.

Virginia Beach has recorded more same-sex marriages — 1,155 — than any other locality. They represent about 1 in 21 marriages performed there.

Tina Sinnen, the Virginia Beach Circuit court clerk, couldn’t cite a specific reason why the coastal city consistently has the highest number of marriages, both same-sex and overall (almost 25,000 over the four years).

“Virginia [Beach] is a beautiful place to get married considering we are a resort city,” Sinnen said. “Possibly my staff is very welcoming and inclusive.”

Of the more than 130 localities in Virginia, only Bland and Highland counties and the city of Manassas Park did not have a single same-sex marriage.

The locality with the highest proportion of same-sex marriages was Buena Vista, a city of 6,240 people nestled in the Blue Ridge Mountains. Of the 201 marriages recorded in Buena Vista from 2014 to 2018, 14 were same-sex. That is 1 in 14, or 7 percent.

Christopher Coleman, the Buena Vista Circuit Court clerk, declined to comment on his locality’s proportion of same-sex marriages.

Now that same-sex couples represent a growing proportion of marriages in Virginia, will they also constitute a sizable proportion of divorces? Bill Harrison, the president and director of the Richmond-based LBGTQ rights organization Diversity Richmond, doesn’t think so.

“Many gay and lesbian people who are now officially married have already been coupled for many years,” Harrison said. “Chances are they will not divorce. Hopefully that will help the 50% divorce rate set by our heterosexual friends.”

Written by Patricia Cason, Capital News Service. Top Photo via CNS

Conservative Republican’s Dream of Eliminating Marriage Licenses in Alabama Gets Unanimous Support in Senate

New Civil Rights Movement | March 25, 2019

Topics: Alabama, Greg Albritton, marriage equality, marriage licenses, same-sex marriage

The Alabama State Senate is more willing to completely eliminate marriage licenses in their state than they are to accept marriage equality.

Ever since the U.S. Supreme Court recognized that same-sex couples have the same constitutional rights and responsibilities of marriage as different-sex couples do, Alabama Republican state Senator Greg Albritton has worked to eliminate marriage licenses altogether.

On Thursday, the Alabama Senate took a big step toward recognizing Senator Albritton’s dream.

In a unanimous 26-0 vote, as Rocket City Now reports, lawmakers passed a bill that would eliminate marriage licenses altogether – and, to the Republican Senator’s point – eliminate the need for probate judges to issue the licenses to same-sex couples.

Even four years after same-sex couples have been legally marrying across the country, some probate judges in Alabama are still refusing to issue licenses. Albritton’s bill, should it become law, would take away any possible discomfort for these anti-gay judges.

As of last June at least eight Alabama counties were not issuing marriage licenses at all, according to AL.com.

Couples instead would merely fill out a form at their local courthouse, but it would not be a “license.”

It is possible the bill, should it become law, could be ruled unconstitutional, as the intent behind it clearly is discriminatory.

“As a believing Christian, Greg Albritton is a member of the Church of Jesus Christ of Latter Day Saints,” Senator Albritton’s campaign website states. “Being a life-long conservative, Greg strongly supports the clear Constitutional rights as originally  written. These include the right of every citizen to keep and bear arms, to worship God without  government interference, and the right to private property ownership.”

But his campaign website also points to a bill he refused to support that would require “mandatory reporting of known or suspected child abuse or neglect.” Albritton says “I voted against this bill because it threatened the freedom of the clergy.”

In 2018 Sen. Albritton ran unopposed. No Democrat challenged him.

Written by David Badash, The New Civil Rights Movement. Image via Facebook

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