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Same-sex marriage in Tennessee

Part 3: The "Tanco v. Tennessee" lawsuit.
2014-MAR: Preliminary injunction granted.
Conservative faith group reacts negatively.

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This topic is continued from the previous essay.

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In this web site, "SSM" refers to same-sex marriage; LGBT
refers to the Lesbian, Gay, Bisexual and Transgender community.

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2014-MAR-14: Circuit Court Judge issued a preliminary injunction. Conservative group reacts negatively:

One couple, Kellie Miller and Vanessa DeVillez, had earlier dropped out of the lawsuit for an unknown reason(s).

On MAR-14, Judge Aleta Trauger issued a preliminary injunction requiring the State of Tennessee to recognize the out-of-state marriages of the three remaining same-sex couples who are plaintiffs in this case. This injunction does not extend beyond the three couples who are plaintiffs in this case to include any other same-sex couples in Tennessee who have been married out-of-state.

She noted that when the couples:

"... interact with Tennessee officials or fill out official forms to identify themselves as married, they brace themselves for degrading experiences that often occur because of Tennessee’s refusal to recognize their marriages. ... all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history." 1

David Fowler, President of The Family Action Council of Tennessee, issued a statement criticizing to Judge Trauger's ruling. He said:

"While today’s decision by federal Judge Trauger is not a final ruling, she has clearly signaled her intent to continue the war by unelected federal judges against the rights of states and the citizens of that state to determine what its policies regarding marriage should be.

In stating her intent to require Tennessee to recognize out of state marriages involving two individuals of the same sex, Judge Trauger only got one thing right — that her ruling will thwart 'democratically enacted laws' that were 'overwhelmingly' approved by 80% of Tennessee voters.

If Judge Trauger continues on her present course and strikes down our marriage law, we trust that our state’s Attorney General will pursue an immediate appeal to rectify this assault on the will of the people, the rights of our state, and the institution of marriage." 2

Judge Trauger's injunction does have the effect of overturning the "democratically enacted" constitutional amendment that had been "'overwhelmingly" approved by the voters. However, there appears to be no indication from her ruling that this was her original intent. Judge Trauger's ruling was similar to the recent rulings by six District Court judges for similar cases in Kentucky, Michigan, Oklahoma, Texas, Utah and Virginia. All were based on the judges' individual judgment that the states' constitutional amendments violated the equal access and equal protection clauses of the 14th Amendment of the U.S. Constitution. By 2014-AUG, over 30 similar rulings had been made by state and federal judges about same-sex marriage. All declared "democratically enacted" amendments and/or statutes passed by legislatures because they violated the 14th Amendment. Once the violation was detected, the judges had no choice but to rule as they did.

The ruling by Judge Friedman at a District Court in Michigan is of particular interest to the Tennessee case. It is being appealed to the 6th U.S. Circuit Court of Appeals which may determine the status of marriage for same-sex couples in all of the states that the Appeals Court covers. One of these is Tennessee. Depending upon timing, this might make the Tennessee District Court's ruling moot.

The Tennessee Attorney General's office defended the state's marriage law and constitutional marriage amendment by appealing Judge Trauger's ruling to the 6th U.S. Circuilt Court of Appeals. This had the effect of staying the temporary injunction, so that the three plaintiff couples are no longer considered married in Tennessee.

Eventually, five other cases from Kentucky, Michigan, and Ohio, were considered along with Tennesees "Tanco v. Tennessee" lawsuit by the 6th Circuit on 2014-AUG-07 in a marathon session of the court that lasted three and a half hours.

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2014-MAR-20: Family Action Council of Tennessee expressed concern that this lawsuit may destroy American civilization:

The council has two problems with the case currently underway:

  • The state's brief expressed concern that to force Tennessee to recognize out-of-state same-sex marriage would be "an affront to its sovereignty" and would make Tennessee public policy on marriage "subservient to that of other states." The Council suggests that if the plaintiffs in this case were successful, and if some other state were to legalize polygamous marriages, then Tennessee would have to recognize out-of-state polygamous marriages. That is extremely unlikely, as an entirely new and different lawsuit would be required first. No bill to legalize that type of marriage has ever been filed in any legislature anywhere in the world where same-sex marriage has been legalized.

  • They also expressed concern that to allow same-sex couples' marriages solemnized in other states to be automatically recognized in Tennessee might end American civilization as we know it. They based their fears on a book by Dr. J.D. Unwin published in 1934 and titled "Sex and Culture." 3 He was a professor of ethnology and social anthropology at Oxford and Cambridge Universities in the UK. He died in 1936, two years after the book was published. He had studied 80 primitive tribes and six civilizations that existed at various times over the past 5 millennia of history.

David Fowler, writing for the Council, said:

    "Dr. Unwin ... found a positive correlation between the cultural achievement of a people and the sexual restraint they observe. ... Dr. Unwin wrote: 

    'Any human society is free to choose either to display great energy or to enjoy sexual freedom; the evidence is that it cannot do both for more than one generation.'

    In other words, the energy it takes to create and maintain a great civilization does not exist in a society that has chosen to 'enjoy sexual freedom.'

    His research also showed that societies that rest on sexual freedom never recover their civilizing energy: “In human records there is no instance of a society retaining its energy after a complete new generation has inherited a tradition which does not insist on pre-nuptial and post-nuptial continence. ..."

    "So, contrary to what Judge Trauger and the proponents of same-sex marriage want us to believe, those who want to redefine marriage to fit their no-boundaries sexual ethic are the ones on the 'wrong side of history'." 4

His conclusion is confusing. He provides evidence that civilizations and societies fail if marriage is replaced with random fornication. But the current lawsuit is doing the reverse. The plaintiffs are currently unmarried in the state of Tennessee, considered by the state to be "legal strangers." Their goal is to transition from their current single state -- recognized only as roommates by the state -- and to become married. So, if Dr. Unwin's studies have any validity, the plaintiffs can expect to strengthen marriage in the state.

His statement was printed in The Chattanoogan, where it received 8 comments by readers -- mostly negative. Reader Colleen Carboni wrote:

"No, David, you are wrong. That ruling reinforces what we hold dear- equality for all. You may have religious reasons for objecting to same sex marriage but no good secular argument. And the concept that we don't allow those who believe in a specific religion to set laws for all is something our Founding Fathers held dear. It is you that is on the wrong side of history.

In 20 or so years we will look upon this marriage issue the same way we look at civil rights for all, women voting and freeing slaves, wondering about the people who fought against it. I will be looking forward to what you will have to say then." 5

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Judge issues injunction in Tennessee same-sex marriage case," Dallas Voice, 2014-MAR-14, at:
  2. David Fowler, "Statement by FACT President David Fowler on U.S. Judge Trauger's ruling ordering Tennessee to recognize 3 same-sex marriages," Family Action Council of Tennessee, 2014-MAR-14, at:
  3. book cover image J.D. Unwin, "Sex and Culture," (1934). Listed but currently unavailable as of 2014-MAR-25 at
  4. David Fowler, "Same-sex marriage ruling washes away values we hold dear," Family Action Council of Tennessee, 2014-MAR-20, at:
  5. David Fowler, "Same-Sex Marriage Ruling Washes Away All We Hold Dear - And Response (8)," The Chattanoogan, 2014-MAR-26, at:

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Home > Religious info. > Basic > Marriage > Same-sex marriage> same-sex marriage sub-menu > Tennessee > here

Home > "Hot" topics > Homosexuality> Same-sex marriage >same-sex marriage sub-menu > Tennessee > here

Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-MAR
Latest update: 2014-MAR-26
Author: B.A. Robinson

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