Davidson County Chancellor Ellen Hobbs Lyle has approved a request by more than 90 state legislators to join a lawsuit that was filed against the state of Tennessee by the American Civil Liberties Union of Tennessee (ACLU) and the Tennessee Equality Project (TEP).
The 99 lawmakers will be represented by attorneys from the Alliance Defense Fund, a conservative legal group that often opposes the ACLU in lawsuits. Forty-six Republicans in the house and 16 of 17 in the senate have asked to intervene. Jamie Hagood of Knoxville, who voted for the amendment, is not participating in the suit. There are 21 Democrats in the house and 16 in the senate who also want to be included.
The request for intervention was by the Alliance Defense Fund (ADF) which solicited legislators to be in the suit. The ADF has tried to intervene in more than a dozen of marriage equality cases around the country.
Nashville attorney Abby Rubenfeld, who is one of the attorneys helping to fight the case on behalf of the ACLU and TEP, said the decision was “disappointing but not unexpected.”
“This decision has no meaning as to the merits of the case,” she explained. “It simply means that the judge wanted to be very sure that all voices were heard, especially given the number of legislators that the Alliance Defense Fund recruited as their clients.”
Rubenfeld said the Alliance Defense Fund told Judge Lyle that they would neither seek to delay the suit, nor would they cost taxpayers any money.
Rubenfeld said the group’s preference would have been to simply let the ADF be an amicus curiae—or a “friend of the court”—rather than a party.
“But the decision was purely discretionary to the judge and she decided that this way would be best,” Rubenfeld explained.
Both sides are gearing up for what is expected to be a long legal battle winding up in the state Supreme Court.
State Rep. Bill Dunn, R-Knoxville, who sponsored a resolution setting up the vote, argued in an affidavit filed with the court that "legislative power" and the "personal reputations and integrity" of lawmakers who supported the proposal are at stake in the lawsuit.
Tennessee Attorney General Paul Summers had said before the ruling that he didn’t need the lawmakers joining the suit, that he could represent their interests.
TEP and the ACLU-Tennessee filed the suit back in April charging that the Legislature and Secretary of State Riley Darnell broke legal rules for authorizing a state constitutional amendment by not giving proper public notice.
In an interview on “Out & About Today,” a TV show on NewsChannel 5+, Rubenfeld said the suit was a procedural challenge, one that doesn’t deal with the substance of the marriage amendment.
“I think we stand an excellent chance,” Rubenfeld said, “if the law is applied as it is written.”
She said that the state did not follow proper guidelines as outlined in the state constitution. These guidelines were not followed in that, while the proposed constitutional amendment was passed by the legislature, the state failed to provide the public with the required six-month notice.
“We know that this case presents a simply legal issue about the procedure followed. There are no disputes about the actual facts. The issue of the constitutionality of the ban on same sex marriages will wait for another day. The issue here is simply whether the procedure for adoption REQUIRED by the state constitution was followed,” she explained. She then added: “The facts show that it was not. It is that simple. If they want to present the issue to the voters, they need to follow the rules; that is all we are saying. We are not trying to silence anyone or prevent the voters from considering the issue.”
Despite numerous media reports on the amendment, Rubenfeld said these notices don’t meet the standard of the law for proper public notification because it’s not the practice of the legislature. $18,000 was appropriated by the legislature to publish the notice in newspapers across the state, but only after the six-month deadline had passed.