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New Gay Marriage Lawsuit is Much Bigger than Tennessee

New Gay Marriage Lawsuit is Much Bigger than Tennessee

A new federal gay marriage lawsuit has just been filed in Tennessee. While important for the state itself, it could be a game changer for the entire country.

The lawsuit, Tanco v. Haslam, was filed on Monday, October 21, in federal district court in Nashville. It sees four same-sex couples who have legally married in other states challenge Tennessee’s laws that prevent same-sex couples from marrying within the state and having their out-of-state marriages recognized. This means the couples are treated as legal strangers and are therefore blocked from receiving all the state sanctioned benefits of marriage, and also some federal benefits that rely on state recognition like certain pension rights.

Tennessee voters passed the Tennessee Marriage Protection Amendment (Amendment 1) in 2006, codifying the state’s existing statutory ban on same-sex marriage and prohibiting all marriage-like partnerships and any state court attempts against the amendment, with the language:

The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

The lawsuit challenges that this denial of rights violates the federal Constitution by denying the four couples equal protection and due process. Importantly, the suit also argues that the ban violates the constitutionally protected right to travel between, and move to, other states per the Privileges and Immunities Clause of the U.S. Constitution.

The couples suing the state include Dr. Valeria Tanco and Dr. Sophy Jesty  of Knoxville; Army Reserve Sergeant First Class Ijpe DeKoe and Thom Kostura of Memphis; Kellie Miller and Vanessa DeVillez of Greenbrier; and Matthew Mansell and Johno Espejo of Franklin.

The lawsuit is particularly interesting in that it asserts same-sex couples should, like anyone else, have the right to travel between states and as a part of ensuring that right should have their marriages recognized. Obviously, by the language shown above, Tennessee’s laws disagree. While the case doesn’t specifically take aim at wider laws (yet), it is not just Tennessee state law that is at play here.

Tackling DOMA Section 2

This summer, the Supreme Court of the United States struck down Section 3 of the federal Defense of Marriage Act (DOMA) that prevented the federal government from recognizing same-sex marriages and therein precluded same-sex married couples from accessing federal marriage benefits, the case (Windsor v. United States) did not challenge Section 2 of DOMA. This is the part of the federal law that remains in effect today. It 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.

Essentially, no state is compelled to honor a same-sex marriage that has been carried out in another state, territory or country. As such, while one of the couples named in the suit married in California, DOMA and Tennessee state law says that their marriage could not “travel” with them when they moved into the State of Tennessee.

By arguing Tennessee’s law violates the Constitution’s guarantee of the right to travel, the suit probably cannot help but at least touch on DOMA Section 2. Were DOMA Section 2 to be struck, all state bans on recognizing out-of-state same-sex marriages would be in jeopardy. That would be a massive win for marriage equality and would most likely rapidly speed up progress.

Speaking to this important issue, Shannon Minter, Legal Director for the National Center for Lesbian Rights, which is helping litigate in this case, is quoted as saying, “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.”

What Evidence is there that this Case Has Merit?

Obviously, all the usual equality arguments apply, and they are compelling enough.

In addition, the Supreme Court of the United States has already held that Section 3 of DOMA is unlawful because it sought to use moral disapproval of a minority in order to justify discrimination. The rationale would appear to translate to Tennessee’s marriage amendment and, for that matter, DOMA Section 2.

On this count, we might face an argument suggesting that the amendment and Section 2 are still viable in order to preserve state autonomy and ensure that individual states continue to be able to make up their own minds about the marriage equality issue. Indeed, those supporting Tennessee’s marriage amendment have already started crowing about federalism.

Particularly important for the pro-gay rights side in this regard is that the mixing of federal and state law on the marriage issue means this there is a careful balance of interests that, at the moment, appears weighted toward discrimination and not the inalienable rights of same-sex couples. For instance, federal government agencies, namely the IRS, have already said that no matter what state a couple lives in, so long as a same-sex couple has been lawfully married in one state or territory, that marriage is valid for federal purposes regardless of state law.

Now, several states have decided to not comply with that determination. Nevertheless, how Tennessee’s law hampers the federal government’s recognition will likely play a significant part in this case, too. Obviously the same argument can be made against DOMA Section 2.

Even if the scope of the suit remains narrow and does not broach the DOMA Section 2 question, the Tennessee lawsuit confronts a pressing issue that, until now, has not been squarely met and so it stands to be an important one not just for the families named in this case, which it undoubtedly is, but for same-sex couples throughout the United States.

You can watch a video below of the couples discussing the pressing need for this case and see in no uncertain terms what recognition of their right to marry really means to them:

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Photo credit: Thinkstock.

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41 comments

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2:52AM PDT on Oct 27, 2013

noted

2:58PM PDT on Oct 26, 2013

why does it concern people so much who gets married, they are humans, it's not like someone is marrying a goat.

11:22AM PDT on Oct 26, 2013

It still is an interesting point of law.

10:10AM PDT on Oct 26, 2013

With the earth crumbling around us, it's no time to be divisive.

8:36AM PDT on Oct 26, 2013

Sooner or later----these laws are going down! And, in a hundred years, people will look back and SNEER at the ignorance, bigotry and misplaced "Christianity'' behind them.

10:45AM PDT on Oct 25, 2013

Remember - we're talking about TENNESSEE judges here.

This is a state RENOUNED for it's crazy legal authorities. They shoot puppies in front of children you know - - -

12:35AM PDT on Oct 24, 2013

There is an answer to the question "Why do they do that?" Certain parts of our country are located in what I like to call the "Puritan Belt". You know the old saying; "A Puritan is someone who is deathly afraid that someone, somewhere, is having fun." 'Nuff said.

10:51PM PDT on Oct 23, 2013

Allan Y:
It is extremely easy to answer your question, "If you are married in a state that supports gay marriage, does the the state you reside in have to acknowledge it? If I had to choose, I would say the couple would lose."
Nope, nope, nope, you don't know your Constitution, DO you???!!!
The Constitution of the United States, Article IV, Section 1, states:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
======
Just think of the Legal Chaos that would ensue, if these Constitutional Provisions were NOT the case! I could get out of a boring marriage, not by going thru the tedium of a Divorce, but just by crossing a State line; I could get married again, and it wouldn't be bigamy; again I just cross a State line instead of a divorce and get married a THIRD time... if Marriage isn't legally binding just because you cross a State line, then neither is divorce...

8:41PM PDT on Oct 23, 2013

Virtually anything is bigger than the brain cells of right-wing Tennessee politicians...and the majority of all right-wing politicians' brain cells for that matter.

2:29PM PDT on Oct 23, 2013

this is just so ridiculous. i don't think it's anyone else's concern on who you choose to spend the rest of your life with. If a lady meets another lady (or a man meets another man, etc) who makes her happy, let them get married, and really, why do other people care so much? It's not affecting anyone except the people getting married, and if that's not you, then butt out, it's not your concern.
And to this whole bible-thumping thing, I only have one thing to say to you - the Romans were around LONG before J.C. and the bible, and they had "Roman Baths". What the hell do you think a bunch of men naked in a bathhouse together are doing? Homosexuality has been around a long, long, long, long, long, long, long, long, long time.
Seriously, you need to focus on important issues, like child abuse, animal abuse, cyber-bullying, terrorism, things that actually hurt communities and people.

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