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Tennessee Governor Bill Lee signed HB 878 into law after the state House and Senate overwhelmingly voted to support public officials who do not want to take part in “same-sex ceremonies” against their conscience or religious beliefs. The bill, which spans less than half a page, amends the state code changing the requirements for formalizing a marriage within the state.

The bill simply reads, “A person shall not be required to solemnize a marriage if the person has an objection to solemnizing the marriage based on the person’s conscience or religious beliefs.”

The new law extends these conscience protections for those in a position to perform or facilitate marriages and licenses for couples, such as judges, magistrates, administrators, and clerks. The change in the law does not prohibit “same-sex marriage” or prevent those in same-sex relationships from obtaining a marriage license. Rather, same-sex couples aiming to get married must find an official willing to file the paperwork or officiate the marriage.

In addition to Tennessee, states such as Kentucky, Mississippi, North Carolina, and Utah also allow public officials to recuse themselves from taking part in recognizing “same-sex ceremonies.”

Tennessee’s legislation comes nearly nine years after the U.S. Supreme Court’s 5-4 opinion in Obergefell v. Hodges. Shortly after that ruling in 2015, former Rowan County Clerk Kim Davis from the neighboring state of Kentucky refused to issue marriage licenses due to her religious beliefs that marriage is the union between one man and one woman. While Davis discontinued facilitating all marriage licenses while she sought a religious accommodation, she also spent six days in jail for not compromising her religious beliefs. Soon after, in December 2015, newly elected Kentucky Governor Matt Bevin issued an executive order accommodating all Kentucky clerks. Then in April 2016, the Kentucky legislature unanimously enacted into law accommodation for all clerks.

Liberty Counsel represents Davis in ongoing litigation from two same-sex couples who have sued her claiming she is personally liable for declining their marriage license during the time before her religious accommodation. During the trial in Yates v. Davis and Ermold v. Davis, two juries – one for each couple – heard the same evidence and the same arguments in both cases. The Yates jury awarded zero damages to the couple because the evidence did not support the awarding of any damages. However, without any evidentiary support, the Ermold jury reached a verdict of $50,000 for each plaintiff.

Liberty Counsel argues that Davis should not be liable for any damages because she was entitled to a religious accommodation from issuing marriage licenses under her name and authority that conflicted with her religious beliefs.

Liberty Counsel Founder and Chairman Mat Staver said, “The First Amendment protects the rights of free speech and religion. Recent Supreme Court precedent affirms that people cannot be forced to express things they do not believe, nor must they affirm every message someone wants them to express. Tennessee has done the right thing to protect the religious freedom of its public officials. No person should have to choose between violating their sincerely held religious beliefs and their livelihood. Kim Davis’ case has the potential to overturn Obergefell v. Hodges and extend the same religious freedom protections to all Americans.

Author: Liberty Counsel


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