Looking Back & Looking Ahead: Five Years Post-Tanco/Obergefell

 

Program Agenda

Faculty Bios

Attendance Form

Program Evaluation


 

A Timeline of LGBT Rights in America and the Legal Antecedents of Marriage Equality

December 10, 1924

The Society for Human Rights is founded by Henry Gerber in Chicago. The society is the first gay rights organization as well as the oldest documented in America. After receiving a charter from the state of Illinois, the society publishes the first American publication for homosexuals, Friendship and Freedom. Soon after its founding, the society disbands due to political pressure.

1948
Biologist and sex researcher Alfred Kinsey publishes Sexual Behavior in the Human Male. From his research Kinsey concludes that homosexual behavior is not restricted to people who identify themselves as homosexual and that 37% of men have enjoyed homosexual activities at least once. While psychologists and psychiatrists in the 1940s consider homosexuality a form of illness, the findings surprise many conservative notions about sexuality.

November 11, 1950
In Los Angeles, gay rights activist Harry Hay founds America’s first sustained national gay rights organization. In an attempt to change public perception of homosexuality, the Mattachine Society aims to “eliminate discrimination, derision, prejudice and bigotry,” to assimilate homosexuals into mainstream society & to cultivate the idea of an “ethical homosexual culture.”

December 15, 1950
A Senate report titled “Employment of Homosexuals and Other Sex Perverts in Government” is distributed to members of Congress after the federal government had covertly investigated employees’ sexual orientation at the beginning of the Cold War. The report states since homosexuality is a mental illness, homosexuals “constitute security risks” to the nation because “those who engage in overt acts of perversion lack the emotional stability of normal persons.” The “Lavender Scare,” taking place in the prior few years, saw more than 4,380 gay men and women discharged from the military and around 500 fired from their jobs with the government.

April 1952
The American Psychiatric Association lists homosexuality as a sociopathic personality disturbance in its first publication of the Diagnostic and Statistical Manual of Mental Disorders. Immediately following the manual’s release, many professionals in medicine, mental health, and social sciences criticize the categorization due to lack of empirical and scientific data.

April 27, 1953
President Dwight Eisenhower signs Executive Order 10450, banning homosexuals from working for the federal government or any of its private contractors. The Order lists homosexuals as security risks, along with alcoholics and neurotics.

September 21, 1955
In San Francisco, the Daughters of Bilitis becomes the first lesbian rights organization in the United States. The organization hosts social functions, providing alternatives to lesbian bars and clubs, which are frequently raided by police.

August 30, 1956
American psychologist Evelyn Hooker shares her paper “The Adjustment of the Male Overt Homosexual” at the American Psychological Association Convention in Chicago. After administering psychological tests, such as the Rorschach, to groups of homosexual and heterosexual males, Hooker’s research concludes homosexuality is not a clinical entity and that heterosexuals and homosexuals do not differ significantly. Hooker’s experiment becomes very influential, changing clinical perceptions of homosexuality.

January 13, 1958
In the landmark case One, Inc. v. Olesen, the U.S. Supreme Court rules in favor of the First Amendment rights of the LGBT magazine One: The Homosexual Magazine. The suit was filed after the U.S. Postal Service & FBI declared the magazine obscene material, and it marks the first time the U.S. Supreme Court rules in favor of homosexuals.

January 1, 1962
Illinois repeals its sodomy laws, becoming the first U.S. state to decriminalize homosexuality.

July 4, 1965
At Independence Hall in Philadelphia, picketers begin staging the first Reminder Day to call public attention to the lack of civil rights for LGBT people. The event continues for five years.

April 21, 1966
Members of the Mattachine Society stage a “sip-in” at the Julius Bar in Greenwich Village, where the New York Liquor Authority prohibits serving gay patrons in bars on the basis that homosexuals are “disorderly.” Society president Dick Leitsch and other members announce their homosexuality and are immediately refused service. Following the sip-in, the Mattachine Society will sue the New York Liquor Authority. Although no laws are overturned, the New York City Commission on Human Rights declares that homosexuals have the right to be served.

August 1966
After transgender customers become raucous in a 24-hour San Francisco cafeteria, management calls police. When a police officer manhandles one of the patrons, she throws coffee in his face and a riot ensues, eventually spilling out onto the street, destroying police and public property. Following the riot, activists established the National Transsexual Counseling Unit, the first peer- run support and advocacy organization in the world.

June 12, 1967
In Loving v. Virginia the Supreme Court unanimously holds Virginia’s antimiscegenation statute, which banned inter-racial marriages, violates the Due Process Clause of the Fourteenth Amendment. “Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” Loving would be much relied upon in briefing and arguing Obergefell.

June 28, 1969
Patrons of the Stonewall Inn in Greenwich Village riot when police officers attempt to raid the popular gay bar around 1am. Since its establishment in 1967, the bar had been frequently raided by police officers trying to clean up the neighborhood of “sexual deviants.” Angry gay youth clash with aggressive police officers in the streets, leading to a three-day riot during which thousands of protestors receive minimal local news coverage. Nonetheless, the event will be credited with reigniting the fire behind America’s modern LGBT rights movement.

June 28, 1970
Christopher St. Liberation Day commemorates the one-year anniversary of the Stonewall riots. Following the event, thousands of members of the LGBT community march through New York into Central Park, in what will be considered America’s first gay pride parade. Over decades, the annual gay pride parade spreads to dozens of countries around the world.

October 15, 1971
In Baker v. Nelson the Supreme Court first considered the issue of marriage equality when a Minneapolis couple sued after being denied the right to marry. The Court dismissed the case “for want of a substantial federal question.”

December 15, 1973
The board of the American Psychiatric Association votes to remove homosexuality from its list of mental illnesses.

January, 1974
Kathy Kozachenko becomes the first openly gay American elected to public office when she wins a seat on the Ann Arbor, Michigan, City Council.

June 7, 1977
Singer and conservative Southern Baptist Anita Bryant leads a successful campaign with the “Save Our Children” Crusade to repeal a gay rights ordinance in Dade County, Florida. Bryant faces severe backlash from gay rights supporters across the U.S. The gay rights ordinance will not be reinstated in Dade County until December 1, 1998, more than 20 years later.

November 8, 1977
Harvey Milk wins a seat on the San Francisco Board of Supervisors and introduces a gay rights ordinance protecting gays and lesbians from being fired from their jobs. Milk also leads a successful campaign against Proposition 6, an initiative forbidding homosexual teachers. A year later, on November 27, 1978, former city supervisor Dan White assassinates Milk. White’s actions are motivated by jealousy and depression, rather than homophobia.

May 21, 1979
Dan White is convicted of voluntary manslaughter & sentenced to seven years in prison. More than 5,000 protesters, outraged by what they believed to be a lenient sentence, ransack San Francisco’s City Hall, causing hundreds of thousands of dollars in property damage. The next night, approximately 10,000 people gather on San Francisco’s Castro and Market streets for a peaceful demonstration to commemorate what would have been Milk’s 49th birthday.

October 14, 1979
An estimated 75,000 people participate in the National March on Washington for Lesbian and Gay Rights. LGBT people and straight allies demand equal civil rights and urge for the passage of protective civil rights legislature.

July 8, 1980
The Democratic Rules Committee states that it will not discriminate against homosexuals. At their National Convention on August 11-14, the Democrats become the first major political party to endorse a homosexual rights platform.

July 3, 1981
The New York Times prints the first story of a rare pneumonia and skin cancer found in 41 gay men in New York and California. The CDC initially refers to the disease as GRID, Gay Related Immune Deficiency Disorder. When the symptoms are found outside the gay community, Bruce Voeller, biologist and founder of the National Gay Task Force, successfully lobbies to change the name of the disease to AIDS.

March 2, 1982
Wisconsin becomes the first U.S. state to outlaw discrimination on the basis of sexual orientation.

June 30, 1986
In Bowers v. Hardwick, the Supreme Court upheld Georgia’s sodomy law. The 5-4 decision, authored by Justice Byron White, held that the 14th Amendment’s due process clause did not prevent states from criminalizing private, consensual sex between people of the same sex.

March 10, 1987
AIDS advocacy group ACT UP (The AIDS Coalition to Unleash Power) is formed in response to the devastating affects AIDS has had on the gay and lesbian community in New York. The group holds demonstrations against pharmaceutical companies profiteering from AIDS-related drugs as well as the lack of AIDS policies protecting patients from outrageous prescription prices.

June 1, 1987
The Supreme Court rules in Turner v. Safley that the Missouri Department of Corrections’ restriction limiting prisoners’ ability to marry is unconstitutional. The Court’s opinion stresses the dignity interests found in marriages, noting that marriages “are expressions of emotional support and public commitment” that carry “spiritual significance” and implicate “the receipt of government benefits,” “property rights,” and “other, less tangible benefits,” which together are part of the “constitutionally protected marital relationship.” The case proves to be an important counter to arguments made by the States in Obergefell that an interest in protecting the procreative function of marriage justified prohibitions against same sex marriage.

October 11, 1987
Hundreds of thousands of activists take part in the National March on Washington to demand that President Ronald Reagan address the AIDS crisis.
Although AIDS had been reported first in 1981, it is not until the end of his presidency that Reagan speaks publicly about the epidemic.

May - June, 1988
The CDC mails a brochure, Understanding AIDS, to every household in the U.S. Approximately 107 million brochures are mailed.

December 1, 1988
The World Health Organization organizes the first World AIDS Day to raise awareness of the spreading pandemic.

August 18, 1990
President George Bush signs the Ryan White Care Act, a federally funded program for people living with AIDS. Ryan White, an Indiana teenager, contracted AIDS in 1984 through a tainted hemophilia treatment. After being barred from attending school because of his HIV-positive status, Ryan White becomes a well-known activist for AIDS research and anti-discrimination.

1991
Created by the New York-based Visual AIDS, the red ribbon is adopted as a symbol of awareness and compassion for those living with HIV/AIDS.

December 21, 1993
The Department of Defense issues a directive prohibiting the U.S. Military from barring applicants from service based on their sexual orientation. “Applicants . . . shall not be asked or required to reveal whether they are homosexual,” states the new policy, which still forbids applicants from engaging in homosexual acts or making a statement that he or she is homosexual. This policy is known as “Don’t Ask, Don’t Tell.”

May 20, 1996
In the case of Romer v. Evans, the U.S. Supreme Court decides that Colorado’s 2nd amendment, denying gays and lesbians protections against discrimination, is unconstitutional, calling them “special rights.”

September 21, 1996
President Clinton signs the Defense of Marriage Act (“DOMA”) into law. DOMA defines marriage as a legal union between one man and one woman and instructs that no state is required to recognize a same-sex marriage from out of state.

April 1, 1998
Coretta Scott King, widow of civil rights leader Martin Luther King, Jr., calls on the civil rights community to join the struggle against homophobia. She receives criticism from members of the black civil rights movement for comparing civil rights to gay rights.

April 26, 2000
Vermont becomes the first state in the U.S. to legalize civil unions and registered partnerships between same-sex couples.

June 28, 2000
In Boy Scouts of America v. Dale the Supreme Court held 5-4 that a private organization could single out LGBT people with specific rules based on a First Amendment right to freedom of association.

June 26, 2003
In Lawrence v. Texas the U.S. Supreme Court rules 6-3 that sodomy laws in the U.S. are unconstitutional, overturning Bowers v. Hardwick.

May 18, 2004
Massachusetts becomes the first state to legalize gay marriage. The court finds the prohibition of gay marriage unconstitutional because it denies dignity and equality of all individuals. In the following six years, New Hampshire, Vermont, Connecticut, Iowa, and Washington D.C. will follow suit.

August 9, 2007
Sponsored by the Human Rights Campaign, the Logo cable channel hosts the first American presidential forum focusing specifically on LGBT issues, inviting each presidential candidate. Six Democrats participate in the forum, including Hillary Clinton and Barack Obama, while all Republican candidates decline.

November 4, 2008
California voters approve Proposition 8 (“Prop 8”), making same-sex marriage illegal in the state. The ballot’s passing garners national attention from gay-rights supporters across the U.S. Prop 8 inspires the NOH8 campaign, a photo project using celebrities to promote marriage equality.

June 17, 2009
President Obama signs a Presidential Memorandum allowing same-sex partners of federal employees to receive certain benefits. The memorandum does not cover full health coverage.

October 28, 2009
The Matthew Shepard Act is passed by Congress and signed into law by President Obama. It expands the 1969 U.S. Federal Hate Crime Law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.

August 4, 2010
A federal judge in San Francisco decides that gays and lesbians have the constitutional right to marry and that Prop 8 is unconstitutional. Lawyers will challenge the finding.

December 18, 2010
The U.S. Senate votes 65-31 to repeal the military’s “Don’t Ask, Don’t Tell” policy, allowing gays and lesbians to serve openly in the U.S. Military.

February 23, 2011
President Obama states his administration will no longer defend the Defense of Marriage Act, which bans the recognition of same-sex marriage.

June 24, 2011
New York State is the largest state to legalize gay marriage by passing the Marriage Equity Act.

June 26, 2013
In United States v. Windsor, the U.S. Supreme Court held 5-4 that the Defense of Marriage Act (“DOMA”) of 1996 violated due process and equal protection principles when a lesbian attempted to claim a tax exemption as a surviving spouses and was blocked by DOMA.

June 26, 2015
In Obergefell v. Hodges, the U.S. Supreme Court, 5-4, declares same-sex marriage legal in all 50 states.

June 4, 2018
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court found that a baker was not required to make wedding cakes for same-sex marriages. In the 5-4 decision the Court held in favor of the baker due to the state’s “impermissible hostility toward his sincere religious beliefs” and noted that “the government cannot pass judgment upon or presuppose the illegitimacy of religious beliefs or practices.”

June 15, 2020
In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on their sexual orientation or gender identify.

Compiled and combined with several sources, including:

PBS Milestones in the American Gay Rights Movement

Landmark Cases That Shaped LGBTQ Rights in America


 

The Litigation of Tanco v. Haslam: Tennessee’s Anti-Recognition Laws

 

1. Article XI, section 18 of the Tennessee Constitution:

The historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

2. Tennessee Code Annotated section 36-3-113:

(a) Tennessee’s marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.

(c) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.

(d) If another state or foreign jurisdiction issues a license for persons to marry, which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.


Genesis of the Tennessee Lawsuit

 

  • The Plaintiffs – Previously Married Couples Who Moved to Tennessee
  • Dr. Valeria Tanco and Dr. Sophy Jesty
  • Army Reserve Sergeant First Class Ijpe DeKoe and Thomas Kostura
  • Matthew Mansell and Johno Espejo
  • Sought Recognition Only for Preexisting Marriages
  • Requested Preliminary Injunction Limited to the Plaintiffs
  • Complaint for Declaratory and Injunctive Relief
  • Harms Alleged in Complaint:

28. Denial to same-sex couples of the status of being married in the eyes of the state despite their having previously entered into a legal marriage in another jurisdiction conveys the state’s view that the couple’s marriage is of lesser value and unworthy of legal recognition and support. This public rejection of married same-sex couples’ familial relationship, including the legal relationships of these married Plaintiffs, damages them and their children by facilitating and encouraging both public and private discrimination, by stripping them of privacy and dignity, and by stigmatizing their relationships and families as inferior to those of opposite-sex married couples and their families.

29. Tennessee provides a broad array of statutory protections, benefits, and mutual responsibilities for couples recognized as married under state law. The exclusion of same-sex couples like the Plaintiffs from these protections causes numerous tangible harms to married same-sex couples. Such couples are denied the public and private safety net that attaches to marriage and the ability to legally join their lives together and be treated as a family unit by the government and by other people. The harms to Plaintiffs and other same-sex couples from Tennessee’s refusal to respect their marriages include the following, among others:

a. Tennessee imposes a duty to support one’s opposite-sex spouse financially if the spouse cannot be self-supporting. Tenn. Code Ann. § 39-15-101. There is no support obligation for same-sex spouses.

b. A married person is exempt from inheritance tax on property left to him or her by an opposite-sex spouse, including the spouse’s share of the couple’s home, and thus, protected against economic distress or loss of a home because of an estate tax bill. Tenn. Code Ann. § 67-8-315(a)(6). A same- sex surviving spouse or partner is denied this exemption and must pay a graduated tax of up to 9.5% for a non-exempt estate, the same rate that would apply to non-family members. Tenn. Code Ann. § 67-8-314.

c. Communications between opposite-sex spouses enjoy evidentiary privileges in both civil and criminal proceedings, and an opposite-sex spouse may not be compelled to testify against his or her spouse over that spouses’ objection except in limited circumstances. Tenn. Code Ann. § 24-1-201. Confidential communications between same-sex spouses are afforded no privilege or immunity.

d. An opposite-sex spouse is given priority in consideration for appointment as conservator for a spouse who is in need of a conservator. Tenn. Code Ann. § 34-3-103. A same-sex spouse receives no such priority.

e. An opposite-sex spouse or surviving spouse of a veteran receives a preference when applying for certain state jobs. A same-sex spouse or surviving spouse of a veteran receives no such preference. Tenn. Code Ann. § 8-30-307 (c).

f. A widow or widower of an opposite-sex spouse is entitled to his or her deceased spouse’s estate if the spouse died without a will. Tenn. Code Ann. § 31-2-104. A same-sex surviving spouse or partner in this situation receives nothing.

g. A child born to a married opposite-sex couple is deemed to be the child of both spouses. Tenn. Code Ann. §§ 68-3-305, -306. A child born to a same- sex couple is denied that immediate legal bond with both parents. This also deprives the child of the right of intestate succession to the estate of the parent who is not considered legally related to him or her. Tenn. Code Ann. § 31-2-104. Moreover, that parent is denied many rights commonly afforded to parents such as authority to consent to emergency medical treatment or obtain a social security card and passport for the child. The denial of these protections leaves married same-sex couples and their children highly vulnerable in the event that one parent dies or is unable to care for the child.

h. Under the Tennessee Workers Compensation Law, the opposite-sex spouse of someone who dies as a result of a work-related injury is entitled to damages and may bring suit to enforce such rights. Tenn. Code Ann. § 50- 6-210. Same-sex spouses or partners have no legal standing to sue as a result of their spouse’s workplace injury.

i. An opposite-sex spouse may bring a suit for the wrongful death of his or her spouse, Tenn. Code Ann. § 20-5-110, and an opposite-sex spouse’s right to prosecute such action is superior to any right held by the personal representative of the deceased, Tenn. Code Ann. § 20-5-107. A same-sex spouse has no legal standing to prosecute or participate in such claims.

j. The surviving opposite-sex spouse of a member of the Tennessee Army National Guard or the Tennessee Air National Guard who has been killed in the line of duty may continue existing participation at a subsidized rate in a group health insurance plan sponsored by a local government. Tenn. Code Ann. § 8-27-207. This benefit is not available to a same-sex surviving spouse.

k. Property tax deferral for persons over the age of 65, once granted, is extended until the death of an opposite-sex spouse. Tenn. Code Ann. § 7- 64-101 et seq. Deferral is not available to a surviving same-sex spouse.

l. An opposite-sex spouse of a member of the armed forces who is stationed outside the State is allowed to cast an absentee ballot under the procedures and benefits outlined in Tenn. Code Ann. § 2-6-502. This right is not granted to a same-sex spouse.

m. An opposite-sex spouse who adopts a married name on their marriage license can use that document to change their surname on their Tennessee driver’s license. Tenn. Comp. R. & Regs. 1340-01-13-.12. A same-sex spouse must obtain court-ordered name change, which is both costly and time consuming.

District Court Opinion Granting Preliminary Injunction

“At some point in the future, likely with the benefit of additional precedent from circuit courts and, perhaps, the Supreme Court, the court will be asked to make a final ruling on the plaintiffs’ claims. At this point, 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.”

Judge Aleta A. Trauger


 

Sixth Circuit

Cases Heard by the Sixth Circuit

  • Obergefell v. Kasich (Ohio) Plaintiffs married in Maryland but lived in Ohio, where same-sex marriage was banned. The couple sued to recognize Obergefell on his husband’s death certificate as his spouse.
  • DeBoer v. Snyder (Michigan) Plaintiffs challenged a Michigan law that only allowed for adoption by single individuals and married couples, which, because of Michigan’s same-sex marriage ban, did not include same sex couples.
  • Tanco v. Haslam (Tennessee) Plaintiffs married in states allowing same sex marriage but moved to Tennessee, where same-sex marriage was banned. They sought to force Tennessee to recognize their marriages.
  • Bourke v. Beshear (Kentucky) Plaintiffs challenged Kentucky’s marriage ban, seeking to force the state both to recognize same-sex marriages granted by other states and to issue marriage certificates to same-sex couples.

 

Legal Environment Prior to Sixth Circuit Argument

  • 21 cases (all) found an Equal Protection violation.
  • 12 found a Due Process violation.
  • 17 struck down a ban on same-sex marriage.
  • 12 struck down a marriage recognition ban.
  • 13 found a violation of the fundamental right to marry.
  • 5 found a violation of the fundamental right to remain married.
  • 6 found that classifications based on sexual orientation were subject to heightened scrutiny.
  • None found that the Equal Protection clause was violated because a same-sex marriage ban drew a classification based on sex.
  • 12 found that even under rational basis, the ban was unconstitutional.
  • 4 found a ban unconstitutional after applying intermediate scrutiny, and 6 after applying
  • strict scrutiny (based on fundamental right).
  • 14 courts rejected “tradition” as a state interest.
  • 14 courts rejected “responsible procreation” as a state interest.
  • 15 courts rejected “optimal parenting” as a state interest.
  • 11 courts rejected the “democratic process” as a state interest.
  • 7 courts found the bans were impermissibly based on animus

 

Issues Raised on Appeal in Tanco

  • Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to due process under the Fourteenth Amendment by depriving them of their constitutionally-protected liberty interests in their existing marriages and burdening their exercise of the freedom to marry.
  • Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to equal protection of the laws under the Fourteenth Amendment by excluding all legally married same-sex couples from the protections and obligations of marriage on the basis of their sexual orientation and gender in order to treat same-sex couples and their children unequally.
  • Whether Tennessee’s anti-recognition laws impermissibly burden Plaintiffs’ constitutionally protected right to interstate travel.

 

Opinion of the Sixth Circuit Court of Appeals

 

6th Circuit Majority Opinion

  • Relies on 1972 case of Baker v. Nelson
  • Emphasizes Limited Effect of Windsor
  • Loving Does Not Provide for a Fundamental Right to Marry
  • No Animus – Anti-Marriage Laws Not Enacted out of Hostility • Rational Basis Only Review
  • Regulation of sex between men and women
  • State’s desire to wait and see before “changing”
  • Up to Voters, not Courts, to Provide for Marriage Equality

 

6th Circuit Dissenting Opinion

  • Separation of Powers and Fundamental Role of Courts – Real Harm; not an Abstraction
  • Rejection of any Rational Basis
  • “Irresponsible” Procreation Basis – Concern for Children
  • Draws on Factual Record
  • Review of Decisions from Other Circuits – Baker is Dead Letter Law
  • Same Arguments Advanced in Loving

 

Filings and Argument in the Supreme Court

Questions Presented in Tanco Petition for a Writ of Certiorari

 

QUESTIONS PRESENTED

  1. Whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by depriving same-sex couples of the fundamental right to marry, including recognition of their lawful, out-of-state marriages.
  2. Whether a state impermissibly infringes upon same-sex couples' fundamental right to interstate travel by refusing to recognize their lawful out-of-state marriages.
  3. Whether this court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is binding precedent to the petitioners' constitutional claims.


ISSUES AS GRANTED BY SUPREME COURT

Issue 1: Does the Fourteenth Amendment require a state to license a marriage between two people
of the same sex?

Issue 2: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?Select Filings in the Supreme Court

1. Petition for Writ of Certiorari
2. Brief for Petitioners
3. Brief for the United States as Amicus Curiae for Petitioners
4. Brief for Respondents
5. Reply Brief for Petitioners
6. Opinion in Obergefell v. Hodges


“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.”


“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. . . . [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”



Other Links

Scotusblog’s Tanco v. Haslam Page (includes links to all filings as well as insightful analysis)

Oral Argument (set to John Oliver dog clips) Part I (via YouTube – a fun way to listen to the oral argument)

Oral Argument (set to John Oliver dog clips) Part II

Douglas Hallward-Driemeier Ubben Lecture (via YouTube – Doug provides insight and reflection on his role in the case in an address at his alma mater DePauw University entitled “The Power of Ideas: The Journey from East College to the Supreme Court”)

Equal Justice for Same-Sex Married Couples: Reflections by a Tennessee Lawyer Who Helped Achieve National Marriage Equality 46 U. Mem. L. Rev. 175 (2015). Maureen Holland’s essay recounting her personal experiences as one of the attorneys representing the plaintiffs in Tanco, as well as her analysis of the opinion and its precedents from her perspective as a civil rights and employment law practitioner.

Deviant To Dignified: From Campbell v. Sundquist To Tanco v. Haslam – The Progression Of LGBT Rights & Marital Equality In Tennessee 83 Tenn. L. Rev. 371 (2016). Regina Lambert and Abby Rubenfeld’s examination of the fight for LGBT rights in Tennessee and nationally from the historic discrimination against (and criminalization of) gay individuals to the mandate of marriage equality in Obergefell.

The Fight for Marriage: Church Conflicts and Courtroom Contests Phil Cramer and Bill Harbison’s book exploring marriage and the relationship between church and state from their perspective as attorneys involved in the fight for same sex marriage and active congregants in a Nashville United Methodist church.