Same Sex Married Couples Challenge Tennessee Constitution in Federal Court

Same sex married couples challenge Tennessee Constitution in federal court

In October 2013, a complaint for declaratory and injunctive relief was filed in the Nashville Division of the U.S. District Court for the Middle District of Tennessee. Although it is not this firm’s role to take a position one way or the other, Tanco v. Haslam is an important same sex marriage rights case. One that Tennesseans should pay attention to.

The eight plaintiffs in Tanco v. Haslam are seeking a federal court injunction that would require Tennessee recognize same sex marriages from other jurisdictions on an equal basis with opposite sex marriages.

In the lawsuit, plaintiffs claim they have been singled out for discriminatory treatment under Tennessee marriage law because of the “animus toward gay, lesbian and bisexual persons and same-sex couples” and that the state is sending a “message that same-sex relationships are inferior.” Because of this, they believe they are wrongly deprived of the protections and benefits that heterosexual married couples enjoy.

Attorney Miles Mason Interviewed on Live @ 9

Family law attorney Miles Mason, Sr., was recently interviewed on WREG News Channel 3’s Live @ 9 regarding this controversial lawsuit. Watch Mason’s interview with Alex Coleman and Marybeth Conly on YouTube and:

Tennessee Same Sex Marriage Lawsuit | Mason Comments on Live @ 9

Here is an earlier interview from last year on the same general topic of same sex marriages:

Tennessee Gay Marriage & Divorce | Mason on Live @ 9

No Variations on a Theme with TN Prohibition on Same Sex Marriage

The plaintiffs are same sex Tennessee couples seeking recognition of their out-of-state marriages. All four couples were lawfully wed either in New York or California – two states permitting same sex marriage. Once married, each couple relocated to the Volunteer State.

Their marriages are void and unenforceable under Tennessee law. This state only recognizes marriages between one man and one woman, with all other variations on a theme being against public policy. We are, after all, located in the middle of the Bible Belt.

Challenging Tennessee’s Constitution and Marriage Law

This lawsuit is a direct constitutional challenge and an important case for the LGBT equal rights movement.

More specifically, Article XI, Section 18, of the Tennessee Constitution (known as the “DOMA Amendment”) is being challenged along with the T.C.A. § 36-3-113 marriage law. Both of which are referred to as “anti-recognition laws” in the complaint. Memphis employment law attorney Maureen Holland is one of the four attorneys handling this case.

The marriage law specifies that only a man and a woman can wed each other in Tennessee. Furthermore, the only union recognized in the state is between heterosexual couples. Some states define a marriage as something other than between one man and one woman, but same sex marriages are contrary to public policy here. Other states recognize same sex marriages if lawfully entered into in another state (such as Oregon), but that is not so of Tennessee. The last provision of the marriage statute clearly states that any marriage in any jurisdiction or state that is contrary to the one man with one woman rule shall be “void and unenforceable” in Tennessee. Acts 1996, Ch. 1031, § 1.

Tennessee has a long-standing public policy “to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society.” Arguably, that seems to be what these plaintiffs are seeking as well. Their marriages were validly entered into in other states, yet they do not enjoy the same legal rights and protections as other married people. They desire the same marital property rights as opposite sex married couples, but may not hold title as tenants by the entireties. Those plaintiffs with children desire the same parental rights as opposite sex parents enjoy, so they and their children do not suffer.

Who Are the Parties in the TN Same Sex Marriage Case?

The named defendants are Governor Bill Haslam, Commissioner Bill Gibbons (Dept. of Safety and Homeland Security), Commissioner Larry Martin (Dept. of Finance and Administration), and Attorney General Robert Cooper, all in their official capacities with the State of Tennessee.

The plaintiffs were married in other jurisdictions and, thereafter, moved to Tennessee to pursue careers and other personal goals. Meet the plaintiffs:

Sophy Jesty, DVM DACVIM, University of Tennessee, College of Veterinary Medicine faculty, Knoxville

1. Professionals Valeria Tanco, DVM MSc DACT, and Sophy Jesty, DVM DACVIM, resided in New York and were married there in September 2011. Tanco and Jesty moved to Knoxville to join the faculty at the Tennessee College of Veterinary Medicine in 2011.

Valeria Tanco, DVM MSc DACT, University of Tennessee, College of Veterinary Medicine faculty, Knoxville

There is some urgency to this first couple’s request for court intervention. Tanco is pregnant with their first child and is due in the Spring. They want Tennessee to recognize their same sex marriage so they can both be listed on the birth certificate as “parents”; and to grant them both the legal protections and privileges of being parents.

Although Tanco and Jesty are employed faculty with the University of Tennessee, they are denied a family health insurance plan because of the DOMA Amendment. Instead, they have two individuals policies with two separate premiums.

2. Among the plaintiffs, Johno Espejo and Matthew Mansell have been married the longest (wed August 2008 in California). While residents of California, they both legally adopted a boy and girl. When Mansell’s employer transferred him to Tennessee, the family moved to Nashville. Although Mansell’s employer grants joint benefits generously to this couple, those benefits could be withdrawn anytime without recourse under Tennessee law. With minor children, this couple also has heightened concerns as parents.

3. New Jersey residents who married in New York in July 2011, Kellie Miller and Melissa DeVillez (their married name being Miller-DeVillez) moved to Greenbrier. Although Miller previously resided in Tennessee, as a couple they are treated as “strangers.”  When they applied for driver’s licenses here, the state would not recognize the hyphenated name both took when they were married.

4. Sergeant First Class Ijpe DeKoe and Thom Kastura were also New York residents, marrying there in August 2011. They wed just before DeKoe’s deployment to Afghanistan. Following his return in May 2012, this couple moved to the base in Memphis. Although the Army Reserves now recognizes their same sex marriage, Tennessee does not.

Farnham, Wilson, and the 14^th Amendment to the U.S. Constitution

The case is made that Tennessee has, and continues, to recognize marriages that were legally entered into in other jurisdictions, but which would be void and unenforceable if entered into here. (For example, a common law marriage cannot be created in Tennessee, but the state recognizes common law marriages from South Carolina and Alabama where such marriages are lawfully entered into.)

As a brief overview, plaintiffs argue their marriages should be recognized by Tennessee citing:

● The Tennessee judicial decision that “a marriage valid where celebrated is valid everywhere.” Farnum v. Farnum, 323 S.W.3d 129, 134 (Tenn.Ct.App. 2009).

● Just last June, the U.S. Supreme Court held Section 3 of DOMA unconstitutional. U.S. v. Windsor, 133 S.Ct. 2675 (2013).

● That Tennessee’s marriage law is discriminatory and does not rationally advance any legitimate government interest, serving only to demean and harm the same sex married plaintiffs.

● Violation of U.S. Constitutional rights guaranteed by the Due Process Clause, Equal Protection Clause, and Privileges or Immunities Clause of the 14^th Amendment. The unconstitutional deprivation of liberty and property interests and the right to travel.

What Relief Do Plaintiffs Seek?

In their request for relief, the plaintiffs ask the federal court to declare that Article XI, Section 18 of the Tennessee Constitution violates the 14^th Amendment of the U.S. Constitution. That the court will enjoin state officials (the defendants) from enforcing Article XI, Section 18 – the DOMA Amendment. And that the court will require that state officials recognize same sex marriages granted in other jurisdictions as valid and enforceable under Tennessee law, regulations, and policies.

Miles Mason Family Law Group, Memphis

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation. Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce. A Memphis divorce lawyer from the Miles Mason Family Law Group can help. To schedule your confidential consultation, call us today at (901) 683-1850.