Effort to Derail Tenn. Amendment Fails

ACLU loses on argument that ballot measure was not properly publicized

An attempt by the American Civil Liberties Union of Tennessee to block a vote in November on a proposed amendment to the state Constitution to ban same-sex marriages suffered a setback with a February 23 decision. Davidson County Chancellor Ellen Hobbs Lyle ruled that strict compliance with amendment procedures was not required in this case.

The proposed amendment, by its terms, is concerned only with marriage, unlike some of the broader, more draconian anti-marriage amendments enacted or proposed in other states. It would specify that only a marriage between a man and a woman would be recognized as such in Tennessee, and contains no language suggesting that other forms of recognition for unmarried couples are forbidden.

Under the Tennessee Constitution, a proposed amendment must be approved by two successive sessions of the Legislature before it can be placed on the ballot. After the proposed amendment has been approved for the first time in the Legislature, it is to be “referred to the General Assembly then next to be chosen, and shall be published six months previous to the time of making such choice.” The Constitution does not specify who is required to publish it, or where, but presumably it is supposed to be officially published in whatever publications are used for public notice of official documents in the state.

However, the proposed amendment was not officially published at least six months prior to the most recent General Assembly election. According to the ACLU, the official publication took place less than five months before that election. Seizing on this lack of compliance, the ACLU filed suit seeking an order to strike the proposed amendment from the ballot this November.

Chancellor Lyle dismissed the lawsuit, asserting that the purpose of the Constitution’s publication requirement had been satisfied. She found that the amendment was controversial enough that it received substantial media attention from the date it was first proposed, so the purpose of being sure the voters were aware of it when they went to the polls to elect the General Assembly had been served.

“The actual text of the proposed amendment was extensively published by the media consistent with the six-month time period,” she wrote, according to a report in the Memphis Commercial Appeal. “The Court concludes that this actual, although not official, publication comes within the broad and general wording of the Constitution.”

Lyle wrote that the fact that the amendment’s wording finally approved for the ballot was unchanged throughout the process, from its introduction and its first legislative approval in May 2004, weighed heavily in her ruling.

The executive director of the Tennessee ACLU affiliate, Hedy Weinberg, announced that her organization immediately filed a notice of appeal. The amendment’s chief proponent, State House Republican Leader Bill Dunn, voiced his hope that the ACLU would not “continue to try to thwart the will of the people of Tennessee by preventing them from voting on this measure.”