Judge calls Tenn. gay marriage ban historical 'footnote': Do Southerners now agree?

In ordering an injunction against Tennessee’s ban on gay marriage, a federal judge on Friday called laws against recognizing same sex couples mere “footnotes” in history.

As the legal battle over gay rights shifts to the South, the big question now is whether Southerners have tacitly begun to agree with that notion.

The injunction ruling by Judge Aleta Trauger covers three couples who filed a lawsuit last year against the 2006 state constitutional amendment that both bans gay marriage in the state and orders officials not to recognize marriage certificates from other states. The judge has not made a final ruling in the case, but did seem to tip her hat Friday.

"At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs' marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history," Judge Trauger wrote in the order.

The ruling is the fourth of its kind in the South, which remains the most hard-line region when it comes to denying people of the same sex joining in state-sanctioned unions. In Tennessee, 81 percent of voters approved the gay marriage constitutional ban in 2006.

But a recent shift in public attitudes on gay marriage – even here in the Bible Belt – suggests that a truce could be near.

A Washington Post poll this week showed support for gay marriage in the South at 50 percent for the first time, compared to 59 percent support nationally. Forty-two percent of Southerners say they’re opposed to gay marriage.

“While geographic splits on same-sex marriage approval do show the South lagging other regions, it’s no longer a minority view even here, and it isn’t hard to fathom which way it’s trending,” writes Bruce Barry in the Nashville Scene.

Gay couples are filing lawsuits at a rapid pace in states where voters approved anti-gay marriage amendments to their state constitutions – Indiana, for example, saw 11 couples joining a lawsuit filed on Friday alone. The suits are coming on the heels of last year’s Supreme Court ruling that affirmed the right of same-sex couples to get federal benefits. Since then, judges have struck down marriage bans in Kentucky, Ohio, Virginia, Oklahoma, Utah, and Texas.

In the US, pro-gay marriage states are clustered in the Northeast and Far West; anti-gay marriage states are stacked up in the South, in the Appalachians, the Ohio River Valley, and parts of the Mountain West.

In response to Friday’s ruling in Tennessee, David Fowler, president of Family Action Council of Tennessee, said he expects attorney general Robert Cooper to appeal any final ruling against the marriage ban.

The judge “clearly signaled her intent to continue the war by unelected federal judges against the rights of the states and the citizens … to determine what its policies regarding marriage should be,” Mr. Fowler fumed in a statement.

But it’s not clear, given changing attitudes and legal dynamics – including US Attorney General Eric Holder telling state attorneys general they don’t have to try to uphold laws they feel are discriminatory – whether Southern officials will try to rebuff the courts.

Already, six Democratic attorneys generals have said they will not appeal court rulings striking down gay marriage bans in their states. Such hesitation has begun to spread to the South, as well. Kentucky Attorney General Jack Conway angered conservatives in the state when he recently signaled he will not appeal a federal pro-gay marriage ruling in his state.

"Southerners are increasingly on a journey in support of the freedom to marry," said Marc Solomon, national campaign director for Freedom to Marry, in a statement. "At its core, marriage is about love and family – deeply ingrained Southern values."