Voters will be allowed to decide in November whether they want a constitutional ban on gay marriage in Tennessee, the state Supreme Court said in a unanimous decision filed Friday

Had a legal challenge been successful, a public vote on the proposed amendment to the Tennessee Constitution would have been delayed by at least two years.

Writing for a united court, Chief Justice William M. Barker of Signal Mountain rejected a legal claim by the American Civil Liberties Union, three state legislators and others that would have prevented the amendment from being placed on the ballot.

He wrote, “Wishing to decide this constitutional matter, as we should, on the narrowest grounds possible, we affirm the . . . decision dismissing the complaint because the Plaintiffs have failed to establish that they have standing to bring this lawsuit,” the chief justice wrote.

Justices E. Riley Anderson, Adolpho A. Birch, Jr., Janice M. Holder and Cornelia A. Clark joined in the ruling, which affirmed a lower court decision by Davidson County Chancellor Ellen Hobbs Lyle earlier this year. Because of time constraints and the importance of the issue, no intermediate appeal was heard.

Those challenging placement of the proposed amendment on the ballot argued that the General Assembly did not strictly comply with public notice and publication requirements set forth in Article 11, section 3 of the state constitution. They claimed the secretary of state published the proposed amendment for public view approximately six weeks after the constitution required.

But the court rejected the challenge on a different basis. It held that none of the plaintiffs had standing to bring the suit.

Justice Barker wrote that “concern[s] about the proper and properly limited role of the courts in a democratic society” required rejection of the plaintiffs’ suit.

The chief justice said because the plaintiffs could not show any personal harm from the claimed untimely publication of the proposed amendment, they could not bring a legal claim.

Requiring all potential plaintiffs to show an “injury in fact” before their substantive legal claims can be considered “(properly) restricts the exercise of judicial power . . . (so that) the courts (are not) called upon to decide (political issues) of wide public significance,” Barker wrote.

State Sen. David Fowler, R-Signal Mountain, who is helping to promote the marriage amendment through the RealMarriage.org initiative, stated, "The Tennessee Supreme Court has acted responsibly and with restraint in this instance, and they are to be commended for having done so. Not only have they ruled in accordance with the rule of law but have also ruled in favor of the will of the people, who have clearly indicated their desire to decide this matter at the ballot box in November, by a wide margin."

The group said in a poll commissioned by RealMarriage.org, and conducted by Public Opinion Strategies (the same firm used by at least one of the state's U.S. Senate candidates), "not only was it determined that the average Tennessean solidly supports amending the constitution to define marriage as one man and one woman (59%), but also wants the matter decided by the people, and not the courts, by as much as 76%. 68% (including 57% of those who oppose the amendment) said they wanted it to stay on the ballot."

According to Sen. Fowler, "This is a great day for Tennesseans on two fronts. First, the courts have recognized the need to exercise restraint by allowing the people and their elected legislature to carry out its constitutional responsibilities without over-reaching interference by the courts. It is a clear statement that legislative issues are not to be decided by those in robes at the courthouse at the whim of every citizen who does not agree with a policy decision. Second, the people will now have the opportunity to decide an important issue with far-reaching implications for our children and grandchildren. The people, not the court, will decided the kind of cultural heritage we will enshrine for succeeding generations."

ACLU-TN Staff Attorney Melody Fowler-Green said, "We are disappointed that
the Tennessee Supreme Court ignored the safeguards put in place by the
framers of the Tennessee Constitution. The framers intended to ensure that the people of Tennessee are fully informed before they take the extraordinary step of amending the Constitution, especially in a case like this where important legal protections for thousands of loving Tennessee families are on the line."

"ACLU-TN will continue to fight to ensure equal protection and respect under the law," said Hedy Weinberg, executive director. "All Tennessee families need and deserve the ability to make medical decisions for loved ones, access to health insurance, and the ability to hold on to one's home and livelihood at the death of a life partner. We are confident that the people of Tennessee will recognize this proposed amendment would do harm to thousands of gay and lesbian couples and their children, and will vote the amendment down in November."

ACLU filed ACLU v Darnell on April 21, 2005 challenging a proposed amendment to the Tennessee Constitution that would ban same-sex couples from being able to marry or obtain certain other legal protections.

The lawsuit charged that the state failed to meet notification requirements as outlined in the State Constitution.

The lawsuit was brought on behalf of ACLU members; the Tennessee Equality
Project (TEP), a statewide lesbian, gay, bisexual and transgender lobbying
organization; State Reps. Larry Turner, Beverly Robison Marrero
and Tommie Brown; as well as a number of private citizens.

Sen. Jim Bryson, a Republican candidate for governor, said, “I am very pleased that the court respected the will of the people with today’s ruling. The amendment merely puts into our constitution language stating that marriage is a contract between one man and one woman. Though some of our state’s highest elected officials have called it ‘political posturing,’ the amendment is needed so extremist judges cannot overturn state law and allow marriage to take any form they choose. I was proud to vote for the amendment twice even though the governor spoke against it and refused to sign the legislation when it reached his desk.”

Republican U.S. Senate candidate Ed Bryant said, "I believe, along with most Tennesseans, that the sacred institution of marriage is only between one man and one woman. In Congress, I worked to strengthen families, which includes my strong support for the Defense of Marriage Act. But today's ruling also highlights how powerful our judiciary is and how important it is that we nominate and confirm federal judges who will strictly interpret the law and not make laws from the bench. In the Senate, I will be in a position to affect the judicial nomination process and will work to ensure that the judges we confirm remember that they are judges, and not legislators."

The case is styled ACLU of Tennessee v. Darnell, No. M2006-00460-SC-RDM-CV, and is available at www.tncourts.gov.