In its first opportunity to apply Obergefell v. Hodges[1], the U.S. Supreme Court case holding same-sex marriage is a constitutional right, the Tennessee Court of Appeals recently held the state must recognize same-sex marriages. The next fight will likely be whether Tennessee businesses can refuse to serve LGBT customers for religious reasons.

The Tennessee case[2] arose when two men, lawfully married in Iowa, attempted to divorce in Roane County, Tennessee. Under Tennessee’s Anti-Recognition law[3], the Roane County Circuit Court refused to recognize the marriage and, consequently, refused to grant them a divorce.

While the case was on appeal, the Supreme Court decided Obergefell, stating “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Based on the Supreme Court’s ruling, the Tennessee Court of Appeals reversed the lower court’s refusal to grant the couple a divorce, effectively abrogating the Anti-Recognition law.

Tennessee’s obligation to recognize same-sex marriages is settled. The issue which is not settled is whether Tennessee businesses may refuse to recognize marriage and other rights of the LGBT community.

Under Tennessee’s version of the Religious Freedom Restoration Act (“RFRA”)[4], the government is prohibited from interfering with a person or business’s religious beliefs and practices unless the government has a compelling interest and uses the least restrictive means to advance that interest. What does this mean? Some believe Tennessee’s RFRA allows Tennessee businesses to refuse to serve same-sex couples on religious grounds, in the same way Indiana’s much maligned version of the RFRA would have allowed Indiana businesses to discriminate against LGBT customers.[5]

There is already a strong precedent for allowing for-profit businesses to refuse services on religious grounds. In Burwell v. Hobby Lobby Stores, Inc.[6], the U.S. Supreme Court held Hobby Lobby could refuse to provide contraception-coverage to employees, as required by the Affordable Care Act, on religious grounds. Under the federal version of the RFRA, the government cannot interfere with a person or business’s exercise of religion, even if the burden results from a rule of general applicability. As a result, Hobby Lobby was able to refuse contraceptive-coverage to employees based on its religious beliefs.

A business’s ability to deny services to same-sex couples is currently being tested in Colorado. The Colorado Court of Appeals recently heard arguments in Masterpiece Cakeshop v. Craig[7], a case challenging the Colorado Civil Rights Commission’s ruling that a Christian baker could not refuse to make a cake for a same-sex couple’s wedding on religious grounds.[8] That case is being decided under Colorado’s Anti-Discrimination Act, not the RFRA.

Obergefell laid the groundwork for a more inclusive society. While government may not deny equality of marriage to same-sex couples, the religious rights of businesses may grant them the right to deny equal service to those couples. That issue remains to be resolved.

[1] 135 S.Ct. 2584 (2015).

[2] Borman v. Pyles-Borman, No. E2014-01794-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2015).

[3] The Anti-Recognition law, T.C.A. § 36-3-113, prohibited any policy, law or judicial interpretation that defines marriage as anything other than “the historical institution and legal contract between one (1) man and one (1) woman.”

[4] T.C.A. § 4-1-407.

[5] See, e.g., http://wate.com/2015/03/30/tennessee-already-has-its-own-religious-freedom-law-similar-to-indianas/

[6] 134 S.Ct. 2751 (2014).

[7] Colorado Court of Appeals, Case No. 2014CA1351.

[8] https://www.aclu.org/cases/charlie-craig-and-david-mullins-v-masterpiece-cakeshop