Tennessee's child marriage bill pushes another purpose: Gutting same-sex marriage

Republicans signaled a way to gut Obergefell during KBJ's hearing — now red state legislators are heeding the call

By Amanda Marcotte

Senior Writer

Published April 6, 2022 12:49PM (EDT)

An American flag and a pride rainbow flag overlap in the crowd during a same-sex marriage support rally in West Hollywood celebrate the Supreme Court’s ruling on June 26, 2015 (Getty Images/Joe Kohen)
An American flag and a pride rainbow flag overlap in the crowd during a same-sex marriage support rally in West Hollywood celebrate the Supreme Court’s ruling on June 26, 2015 (Getty Images/Joe Kohen)

Republicans love nothing more than setting up their own "alternatives" to the cultural institutions they believe have been "tainted" by liberalism. Did Twitter ban you for racist vitriol and inciting domestic terrorism? Then try to start (but fail) at creating a Twitter of your own. Don't like that Disney disavows hatred of LGBTQ people? Try to start a children's entertainment company that pushes dull right-wing propaganda instead. Angry that major razor companies won't financially support fascism? Make your own razors! Are you just generally mad at Starbucks because you have a sneaking suspicion that drinking coffee is somehow effeminate? Start your own coffee company that's draped in gun-related imagery and pretend it doesn't scream "overcompensation." There will surely be a "conservative" Oreo to come out any day now that the right is mad about the company running pro-LGBTQ ads

Even though they tend to be a little quieter about it these days, Republicans are also still mad that queer people have supposedly sullied the heterosexual institution of marriage. So it shouldn't be a surprise that they're scheming for ways to create an "alternative" form of marriage, one that excludes same-sex couples. But unlike "alternative" cartoons or razors, it appears that the long-term goal here is to make the straights-only "alternative" the only way to get married. 

A new bill proposed by Republicans in the Tennessee state legislature is mostly getting attention because it would reinstate legal child marriage, which was ended in the state in 2018. But digging in a bit deeper, it becomes clear that the legalization of child marriages, for Republicans, is more of an ancillary benefit to this law. Mostly, it looks like a scheme to outlaw same-sex marriage without directly overturning Obergefell v. Hodges, the Supreme Court decision that cemented marriage equality.

RELATED: I was one of the lawyers who helped win marriage equality. And yes, the GOP can take it away

"Specifically defining marriage between one man and one woman as something that the government then has an obligation to recognize as a valid union sets up the stage for Obergefell being rendered meaningless," Jessica Mason Pieklo, a legal expert with Rewire News Group, told Salon. (Full disclosure: My partner produces Pieklo's weekly podcast "Boom! Lawyered.")

Step #1: Create an "alternative" form of marriage that excludes same-sex couples.

HB 233 would allow people to get married without a license, so long as they were one man and one woman, simply by declaring themselves married or having a pastor marry them. As the bill's sponsor, Republican Rep. Tom Leatherwood, told a local news station, it is meant as "an alternative form of marriage for those pastors and other individuals who have a conscientious objection" to legal same-sex marriage. In other words, if you think a marriage license is sullied by the fact that other people who have the same license are gay, you can get married without one. (Don't tell them that LGBTQ people also get the same driver's license as straight people!)

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But while Leatherwood and other supporters of the law are pretending that it's merely an "alternative" form of marriage, it takes almost no digging to discover that the end goal is for this form of marriage to totally replace the current marriage licensing system, which allows for same-sex marriages. Leatherwood is one of a number of Tennessee politicians, nearly all Republicans, who have signed onto a pledge declaring "Tennessee can repeal is [sic] licensing statutes" and replace it with this so-called alternative form of marriage that excludes same-sex couples. 

This really isn't even that complex of a plan. Step #1: Create an "alternative" form of marriage that excludes same-sex couples. Step #2: Get rid of the regular marriage licenses, so that the straights-only "alternative" is the only way to get married in Tennessee. 

It's part of a larger effort by Republican-controlled state legislatures to write laws that do end runs around previous Supreme Court decisions that protect human rights. In Texas, the "bounty hunter" enforcement mechanism is being used to ban abortion without directly overturning Roe v. Wade. Florida Republicans are using the same civil enforcement mechanism to get around free speech protections with their "don't say gay" law. And this Tennessee bill appears to be about finding a way to end the legal right to same-sex marriage without overturning Obergefell directly. 

RELATED: Tennessee Republicans push to abolish age limit on heterosexual marriages amidst "groomer" outrage

During the Senate confirmation hearings for Ketanji Brown Jackson, President Joe Biden's first nominee to the Supreme Court, Sen. John Cornyn, R-Tex., went down an alarming rabbit hole, making it quite clear that he is still outraged about the legalization of same-sex marriage. He kept saying unsettling things like, "Marriage is not simply a governmental institution. It's also a religious institution" and insisting that Obergefell was somehow oppressing people "who have a firmly held religious belief that marriage is between a man and a woman."

Step #2: Get rid of the regular marriage licenses, so that the straights-only "alternative" is the only way to get married in Tennessee.

He doubled down the next week, complaining that the Supreme Court "mandated same-sex marriages" and arguing that "consent is discarded." The speech drew a great deal of mockery because he made it sound like the state is forcing people into same-sex marriages. But what he's doing is actually quite clever and sinister. He's reframing the Obergefell decision as a form of religious discrimination on the grounds that couples who object to same-sex marriage are being "forced" to get a license they feel is sullied by having to share the right to it with same-sex couples.

Cornyn's ugly rants were a signal to Republicans in state legislatures that he believes there's a way to use these "religious discrimination" arguments to defend schemes to gut Obergefell. He hinted that there should be religion-infused "alternatives" to marriage licenses that exclude same-sex couples. Clearly, the Republicans in Tenneessee heard the message. 

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This is all part of a larger push from Republicans to get more aggressive about rolling back hard-won LGBTQ rights, now that they feel they have a 6-3 majority on the Supreme Court. They're so emboldened, in fact, that they're starting to lose the secretiveness that has defined the past few years of their work, as evidenced by the ease with which Republicans fling the word "groomer" at anyone who supports LGBTQ rights. Just a few years ago, Alliance Defending Freedom — the main anti-LGBTQ legal non-profit — was limiting itself to trying to create religious carveouts to anti-discrimination laws. They now are admitting to the Washington Post that they would like to recriminalize gay sex. 

The good news with the Tennessee law is that there's a steep hill to climb to make this scheme work. Even if Republicans do pass the "alternative" marriage into law, they probably need large numbers of straight people to get married this way, before they can even discuss ending the marriage license. On that front, they may not find a lot of takers. This is hardly the first time conservatives have tried to establish an "alternative" marriage law for fundamentalist Christians. In the '90s, three states passed "covenant marriage" licenses whose main feature was that they made divorce much harder to get. But almost no one bothered to get married that way. The laws still stand, but the Christian right's hopes to make divorce in general harder to get went up in smoke. 

That said, as the Texas "bounty hunter" abortion ban shows, the current Supreme Court is only too happy to sign off on all sorts of harebrained legal schemes to unwind human rights. With firm Republican control over state legislatures, it may not matter if the public shows no interest in these attempts to rewrite marriage laws to re-exclude same-sex couples. Whether or not this particular strategy works, one thing is clear: Republicans have not accepted legal same-sex marriage — they are still plotting on ways to get rid of it. 

RELATED: Florida Republicans revive deadly "queers recruit" myth with passage of "don't say gay" bill

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

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