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Same-sex marriage in Tennessee

Part 2: The "Tanco v. Tennessee" lawsuit.
2013-NOV: Couples request summary judgment.
2014-MAR: Judgment granted. Conservative
group reacts negatively.

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This topic is continued from the previous essay.

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In this web site, "SSM" refers to same-sex marriage; LGBT
refers to the Lesbian, Gay, Bisexual and Transgender community.

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2013-NOV-18: Couples file for a summary judgment:

The four couples made a second filing with the court asking for immediate protection for themselves and families while their lawsuit was being considered. It would continue until their main lawsuit is concluded. They point out that their families are at risk for serious harm which can only be prevented if the state were required to recognize their marriages.

Plaintiff Dr. Jesty said:

"We filed today’s motion because we want to protect our family. We are expecting a child in a few months, and it is extremely distressing that the law makes it impossible for us both to be recognized as legal parents. We urgently need the same protections as other married couples so that we can give our child the stability and protection she deserves." 1

She also said:

"Getting married not only enabled us to express our love and commitment to one another, but it also provided us with the protections we would need as we started our new lives together. When we moved to Tennessee, we lost those protections. Now that Val is pregnant with our first child, having those protections is more important than ever." 2

Sergeant DeKoe said:

"Fairness and equality are the guiding principles of our government, and as a member of the Armed Forces, I have fought and will continue to fight for those principles. After returning to Memphis with Thom, I was saddened to learn that Tennessee law does not live up to those ideals in the way it treats married same-sex couples." 2

Kellie Miller said:

"When we decided to move to Tennessee, I was excited to move back home and return to my former job. We did our best to prepare ourselves when we realized that Tennessee would not recognize our marriage, but we could have never anticipated all the negative ways it has affected us, from big things like not being considered each other’s next of kin for purposes of making medical decisions to small, but important things like not being able to change our driver’s licenses to reflect our married name. Every day, we are reminded that Tennessee does not value our commitment or our family.

We moved to Nashville when my employer decided to relocate me. ... It has been painful to have the state where we live refuse to recognize our marriage. What has been more painful is seeing our kids trying to make sense of it all and never knowing whether our marriage will be respected as we go through our daily lives." 2

One of the plaintiffs' lawyers, Abby R. Rubenfeld, of Rubenfeld Law Office in Nashville said:

"These discriminatory laws are causing serious harms to families in our state. Every Tennessean who values family should care that their neighbors are being hurt by these laws." 1

She also said:

"Tennessee is the volunteer state—it is our tradition to honor and applaud those who voluntarily move here to enjoy the benefits of this great state—not deny them benefits and respect afforded them in other states. Tennessee traditionally values fairness and family. The time has come for Tennessee law to be true to those values by including same-sex couples who legally married before moving to Tennessee because this state is as much their home as it is ours. We believe that the United States Constitution requires that Tennessee law treat married same-sex couples like all other married couples. Today, we ask the courts to reaffirm that dignity and respect are core values in Tennessee and that our anti-marriage recognition laws conflict with those values." 2

Another lawyer for the Plaintiffs, William Harbison, a partner at Sherrard & Roe in Nashville, said:

"Every day that goes by, these couples and their families are being denied critically important protections that other married couples take for granted. These laws are out of step with the reality that more and more same-sex couples are legally married. They also violate the most basic requirements of equal protection and due process. We are asking the court to move quickly because these families need immediate relief."

Shannon Minter, NCLR legal director, said:

"Since these laws were enacted, more and more people in Tennessee and across the country have come to recognize that same-sex couples and their children deserve the same protections and respect as other families. These couples are married, and it serves no purpose for the law to ignore their marriages and treat them as legal strangers to one another. These laws are causing serious harm to families currently living in Tennessee, while helping no one." 2

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Potential long-term implications of this lawsuit and similar lawsuits in other states:

On 2013-JUN-26, when the U.S. Supreme Court declared Section 3 of the federal Defense of Marriage Act to be unconstitutional, it left the Section 2 in place.

Section 2 states:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." 3

This lawsuit is one of over a dozen cases currently being considered by either a federal District Court or a U.S. Circuit Courts of Appeals. If one of these lawsuits were to be appealed to a U.S. Circuit Court of Appeals, and later to the U.S. Supreme Court, the latter court could conceivably declare Section 2 of the federal DOMA law to be unconstitutional. That could give a major boost towards marriage equality, because it might force states like Tennessee to recognize same-sex marriages solemnized out-of-state. This would allow any loving, committed same-sex couple in the U.S. to visit another state, get legally married there, return to their state of residence and assert their right to have their marriage recognized.

Shannon Minter, Legal Director for the National Center for Lesbian Rights, which is helping litigate in this case, said:

"Married couples should be able to travel and to live in any state knowing that their family is protected. Tennessee’s current law hurts same-sex couples and their children without helping anyone." 3

According to NCLR, the summary judgment, if granted, as:

"... requested by the couples, would take effect immediately and remain in effect as the case proceeds toward a final resolution. The couples argue that such an order is necessary because Tennessee’s refusal to respect their marriages deprives them [and their children] of critical legal protections and benefits that they previously enjoyed, many of which are designed to protect couples during an emergency. 4

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2014-MAR-14: Circuit Court Judge issued a preliminary injunction. Conservative group reacts negatively:

One couple, Kellie Miller and Vanessa DeVillez, had earlier dropped out of the lawsuit for an unknown reason(s).

On MAR-14, Judge Aleta Trauger issued a preliminary injunction requiring the State of Tennessee to recognize the out-of-state marriages of the three remaining same-sex couples who are plaintiffs in this case. This injunction will end when Judge Trauger issues her final ruling.

She noted that when the couples:

"... interact with Tennessee officials or fill out official forms to identify themselves as married, they brace themselves for degrading experiences that often occur because of Tennessee’s refusal to recognize their marriages. ... 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." 5

David Fowler, President of The Family Action Council of Tennessee, issued a statement criticizing to Judge Trauger's ruling. He said:

"While today’s decision by federal Judge Trauger is not a final ruling, she has clearly signaled her intent to continue the war by unelected federal judges against the rights of states and the citizens of that state to determine what its policies regarding marriage should be.

In stating her intent to require Tennessee to recognize out of state marriages involving two individuals of the same sex, Judge Trauger only got one thing right — that her ruling will thwart 'democratically enacted laws' that were 'overwhelmingly' approved by 80% of Tennessee voters.

If Judge Trauger continues on her present course and strikes down our marriage law, we trust that our state’s Attorney General will pursue an immediate appeal to rectify this assault on the will of the people, the rights of our state, and the institution of marriage." 6

Fowler certainly appears correct when he said that Judge Trauger's ruling does have the effect of overturning the "democratically enacted" constitutional amendment that had been "'overwhelmingly" approved by the voters. However, there appears to be no indication from her ruling that this was her original intent. Judge Trauger's ruling was similar to the recent rulings by six District Court judges for similar cases in Kentucky, Michigan, Oklahoma, Texas, Utah and Virginia. All were based on the judges' individual judgment that the states' constitutional amendments violated the equal access and equal protection clauses of the 14th Amendment of the U.S. Constitution. Once the violation was detected, the judges had no choice but to rule as they did.

The ruling by Judge Friedman at a District Court in Michigan is of particular interest to the Tennessee case. It is being appealed to the 6th U.S. Circuit Court of Appeals which may determine the status of marriage for same-sex couples in all of the states that the Appeals Court covers. One of these is Tennessee. Depending upon timing, this might make the Tennessee District Court's ruling moot.

The Tennessee Attorney General is expected to defend the state's marriage law and constitutional marriage amendment during the upcoming trial. The AG's office may even find Judge Trauger's preliminary injunction that forces state recognition of these three marriages by same-sex couples so intolerable that the state may challenge her injunction as well.

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2014-MAR-20: Family Action Council of Tennessee expressed concern that this lawsuit may destroy American civilization:

The council has two problems with the case currently underway:

  • The state's brief expressed concern that to force Tennessee to recognize out-of-state same-sex marriage would be "an affront to its sovereignty" and would make Tennessee public policy on marriage "subservient to that of other states." The Council suggests that if the plaintiffs in this case were successful, and if some other state were to legalize polygamous marriages, then Tennessee would have to recognize out-of-state polygamous marriages. That is extremely unlikely, as an entirely new and different lawsuit would be required first.

  • They also expressed concern that to allow same-sex couples' marriages solemnized in other states to be automatically recognized in Tennessee might end American civilization as we know it. They based their fears on a book by Dr. J.D. Unwin published in 1934 and titled "Sex and Culture." 5 He was a professor of ethnology and social anthropology at Oxford and Cambridge Universities in the UK. He died in 1936, two years after the book was published. He had studied 80 primitive tribes and six civilizations that existed at various times over the past 5 millennia of history.

David Fowler, writing for the Council, said:

    "Dr. Unwin ... found a positive correlation between the cultural achievement of a people and the sexual restraint they observe. ... Dr. Unwin wrote: 

    'Any human society is free to choose either to display great energy or to enjoy sexual freedom; the evidence is that it cannot do both for more than one generation.'

    In other words, the energy it takes to create and maintain a great civilization does not exist in a society that has chosen to 'enjoy sexual freedom.'

    His research also showed that societies that rest on sexual freedom never recover their civilizing energy: “In human records there is no instance of a society retaining its energy after a complete new generation has inherited a tradition which does not insist on pre-nuptial and post-nuptial continence. ..."

    "So, contrary to what Judge Trauger and the proponents of same-sex marriage want us to believe, those who want to redefine marriage to fit their no-boundaries sexual ethic are the ones on the 'wrong side of history'." 8

His conclusion is confusing. He provides evidence that civilizations and societies fail if marriage is replaced with random fornication. But the current lawsuit is doing the reverse. The plaintiffs are currently unmarried in the state of Tennessee, considered by the state to be "legal strangers." Their goal is to transition from their current single state -- recognized only as roommates by the state -- and to become married. So, if Dr. Unwin's studies have any validity, the plaintiffs can expect to strengthen marriage in the state.

His statement was printed in The Chattanoogan, where it received 8 comments by readers -- mostly negative. Reader Colleen Carboni wrote:

"No, David, you are wrong. That ruling reinforces what we hold dear- equality for all. You may have religious reasons for objecting to same sex marriage but no good secular argument. And the concept that we don't allow those who believe in a specific religion to set laws for all is something our Founding Fathers held dear. It is you that is on the wrong side of history.

In 20 or so years we will look upon this marriage issue the same way we look at civil rights for all, women voting and freeing slaves, wondering about the people who fought against it. I will be looking forward to what you will have to say then." 9

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Married Same-Sex Couples in Tennessee Ask Court for Immediate Protection of Their Families," The Rainbow Times, 2013-NOV-20, at: http://www.therainbowtimesmass.com/
  2. "Same-Sex Couples File Marriage Recognition Lawsuit in Tennessee," Press Release, National Center for Lesbian Rights, 2013-OCT-21, at: http://www.nclrights.org/
  3. Steve Williams, "New Gay Marriage Lawsuit is Much Bigger than Tennessee," Care2, 2013-OCT-22, at: http://www.care2.com/
  4. "Case summary and history: Tanco v. Haslam," National Center for Lesbian Rights, 2013-NOV, at: http://www.nclrights.org/
  5. Judge issues injunction in Tennessee same-sex marriage case," Dallas Voice, 2014-MAR-14, at: http://www.dallasvoice.com/
  6. David Fowler, "Statement by FACT President David Fowler on U.S. Judge Trauger's ruling ordering Tennessee to recognize 3 same-sex marriages," Family Action Council of Tennessee, 2014-MAR-14, at: http://factn.org/
  7. book cover image J.D. Unwin, "Sex and Culture," (1934). Listed but currently unavailable as of 2014-MAR-25 at Amazon.com.
  8. David Fowler, "Same-sex marriage ruling washes away values we hold dear," Family Action Council of Tennessee, 2014-MAR-20, at: http://factn.org/
  9. David Fowler, "Same-Sex Marriage Ruling Washes Away All We Hold Dear - And Response (8)," The Chattanoogan, 2014-MAR-26, at: http://www.chattanoogan.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2003-NOV-20
Latest update: 2014-MAR-26
Author: B.A. Robinson

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