Director, Commonwealth Policy Center

Earlier this month a judge made a decision on Tennessee’s constitutional definition of marriage as between a man and a woman. The unusual thing about this particular judge was that he actually upheld the state’s right to define marriage thus. I say “unusual” because it’s the first successful day in court for a traditional definition of marriage in over a year. Writing at The Daily Signal, Ryan T. Anderson summarizes:

The case involved a same-sex couple married in Iowa that sought a divorce in Tennessee. Because Tennessee does not recognize same-sex relationships as marriages, it was unable to divorce the couple…Judge Russell E. Simmons, Jr., cited the Supreme Court’s decision in the federal Defense of Marriage Act case, U.S. v. Windsor, as support that Tennessee has the right to define marriage for itself. Simmons writes: “The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another State.”

When the Supreme Court struck down the federal law defining marriage last year, Justice Anthony Kennedy explained that states have “the historical and essential authority to define the marital relation.” Simmons takes Kennedy at his word, recognizing the basic equality of state citizens. Just as the citizens of Iowa are free to adopt same-sex marriage (though it was a state court that redefined marriage there), so too the citizens of Tennessee are free to retain the traditional definition.

While this is a welcome change from the blistering activism of recent memory, enthusiasm should be tempered. This is more of a symbolic victory than a legal one. Both sides of this debate acknowledge that same sex marriage will go to the Supreme Court very soon. The language of Judge Simmons’ ruling suggests that the decision in Tennessee is more of a “Wait and see” than a forward interpretation of the law, since a new decision on gay marriage would (logically) take precedent over any application of the Windsor case in this ruling.

Still, a symbolic victory it is. Lost in the high tide of gay marriage’s legal and social triumphs are the very compelling arguments for a state by state approach to marriage definition. Of course, these arguments are moot in the hands of activist judges who see themselves as sculpters of culture rather than interpreters of constitutional law. Yet Judge Simmons reminds us that it is not only the institutions of marriage and family at stake here, but a healthy federalism and empowerment of local governments. That’s quite a bit that’s been slipping through legal fingers lately, so even symbolic victories are welcome.