Tennessee Circuit Court Judge Russell Simmons (no, not that Russell Simmons, though let's for a second imagine how weird that would be...) is taking some heat from liberal bloggers because he refused to grant a Tennessee couple a divorce for a marriage the state doesn't recognize.
Circuit Court Judge Russell E. Simmons ruled that Tennessee need not recognize the union of Frederick Michael Borman and Larry Kevin Pyles-Borman, who married in August 2010 in Iowa. The judge invoked Tennessee's state laws defining marriage as between one man and one woman.
"Tennessee's laws further provide that if another state allows persons to marriage who are prohibited from marriage in Tennessee, then that marriage is void and unenforceable in Tennessee," he wrote in a ruling last Tuesday, which has now been published online by Lyle Denniston of SCOTUSblog.
Although Judge Simmons’s decision was limited to cases involving a divorce when the marriage itself is not recognized, he ruled in sweeping terms. He relied in part upon the Supreme Court’s summary decision in 1972 rejecting a constitutional challenge to a Minnesota ban, concluding that the Justices have never abandoned that ruling.
To the argument that more recent gay rights decisions have undercut that precedent, the Tennessee judge responded that the issue should more properly be raised in an appellate court with broader authority than that of a trial judge.
The decision also interpreted the Supreme Court’s decision in Windsor as not controlling in a case such as the one before him. “The Supreme Court,” he wrote, “does not go the final step and find that a state that defines marriage as a union of one man and one woman is unconstitutional. Further, the Supreme Court does not find that one state’s refusal to accept another state’s valid same-sex marriage to be in violation of the U.S. Constitution.”
I quote this much because Simmons is being framed here as some conservative jerk who just won't get with the program and, while he may indeed be a conservative jerk who just won't get with the program, this ruling makes sense. He's not saying he thinks gay marriage is wrong and evil. He's saying that it's unconstitutional under Tennessee law and not recognized under Tennessee law. He has no means to grant a legal divorce to a non-legal marriage. And he doesn't think that the U.S. Supreme Court has, as of yet, given him the legal path he would need to do so. They haven't ruled that states have to recognize out of state same-sex marriages and they haven't declared limiting marriage to one man and one woman to be unconstitutional.
I'm frustrated with how long it's going to take Tennessee to do the right thing when it comes to our gay friends and neighbors, but Simmons ruled how a judge in Tennessee should rule. The state law is what it is and there's no federal law that supercedes it. His hands are tied. As our legislature and the voters of Tennessee intended.
So, that's who deserves the blame here, not Simmons.