Marriage Equality in Tennessee

Tenn. Code Ann. § “AN ACT To amend Tennessee Code Annotated, Title 36, Chapter 3, relative to same sex marriages and the enforceability of such marriage contracts.” 1996 Tenn. Pub. Acts 1031 (emphasis added). Tenn. Const. art. XI, § 18 “The... relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state”; and “[i]f 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.” (emphasis added).

Marriage Equality in Tennessee Genesis of Lawsuit The Plaintiffs Dr. Valeria Tanco and Dr. Sophy Jesty Army Reserve Sergeant First Class Ijpe DeKoe and Thomas Kostura Matthew Mansell and Johno Espejo Recognition Only Case Adverse Effects of Non-Recognition Rights and Obligations Need for Preliminary Injunction

Marriage Equality in Tennessee District Court Opinion “[D]efendants offer arguments that other federal courts have already considered and have consistently rejected, such as the argument that notions of federalism permit Tennessee to discriminate against same-sex marriages consummated in other states, that Windsor does not bind the states the same way that it binds the federal government, and that Anti–Recognition Laws have a rational basis because they further a state’s interest in procreation, which is essentially the only “rational basis” advanced by the defendants here.”

Marriage Equality in Tennessee Issues Raised on Appeal Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to due process under the Fourteenth Amendment by depriving them of their constitutionally-protected liberty interests in their existing marriages and burdening their exercise of the freedom to marry. Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to equal protection of the laws under the Fourteenth Amendment by excluding all legally married same-sex couples from the protections and obligations of marriage on the basis of their sexual orientation and gender in order to treat same-sex couples and their children unequally. Whether Tennessee’s anti-recognition laws impermissibly burden Plaintiffs’ constitutionally protected right to interstate travel.

Marriage Equality in Tennessee Plaintiffs’ Positions Exception to General Rule Tennessee has long applied the rule that “a marriage valid where celebrated is valid everywhere.” Due Process (1) the fundamental right to marry; and (2) the fundamental right to privacy and respect for an existing marital relationship. Equal Protection Windsor Gender Classification Lack of Rational Basis Interstate Travel

Marriage Equality in Tennessee Defendants’ Positions Rational Basis Plausible reason Irrelevant whether plausible reason motivated decision-maker How does recognition further any of the state’s goals? Costs state $ to subsidize marriage Can only conclude that legislation was rational – how get 80% of the population to act irrationally Loving Plaintiffs’ misread holding Baker v. Nelson

Marriage Equality in Tennessee Defendants’ Positions No fundamental right implicated Heightened Scrutiny does not apply Slippery Slope Role of Courts Constitution presumes that even improvident decisions will eventually be rectified by the democratic process Change happens in long term – not what claimants can do for themselves in near term, it is what can be done for others in long term What has been done in these states to go through the democratic process?

Marriage Equality in Tennessee Legal Environment Prior to Sixth Circuit Argument 21 cases (all) found an Equal Protection violation. 12 found a Due Process violation. 17 struck down a ban on same-sex marriage. 12 struck down a marriage recognition ban. 13 found a violation of the fundamental right to marry. 5 found a violation of the fundamental right to remain married. 6 found that classifications based on sexual orientation were subject to heightened scrutiny. None found that the Equal Protection clause was violated because a same-sex marriage ban drew a classification based on sex. 12 found that even under rational basis, the ban was unconstitutional. 4 found a ban unconstitutional after applying intermediate scrutiny, and 6 after applying strict scrutiny (based on fundamental right). 14 courts rejected “tradition” as a state interest. 14 courts rejected “responsible procreation” as a state interest. 15 courts rejected “optimal parenting” as a state interest. 11 courts rejected the “democratic process” as a state interest. 7 courts found the bans were impermissibly based on animus

Marriage Equality in Tennessee 6 th Circuit Majority Opinion Framework for Constitutional Thinking 1972 case of Baker v. Nelson Limited Effect of Windsor Oct 6 Cert Denials Not Meaningful No Fundamental Right – Loving No Animus – Not Enacted out of Hostility Rational Basis Only Review Regulation of sex between men and women State’s desire to wait and see before “changing” Up to Voters

Marriage Equality in Tennessee 6 th Circuit Dissenting Opinion Separation of Powers and Fundamental Role of Courts Real Harm; not an Abstraction Rejection of any Rational Basis Irresponsible Procreation Basis Concern for Children Drew on Factual Record Review of Decisions from Other Circuits Baker is Dead Letter Law Same Arguments Advanced in Loving

Marriage Equality in Tennessee ISSUES PRESENTED IN SUPREME COURT Issue 1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? Issue 2: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 12

Marriage Equality in Tennessee HOLDING: Judgment REVERSED, 5-4. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Scalia, J. filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. 13

Marriage Equality in Tennessee The opinion seems to go out of its way not to state a standard of scrutiny. “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." (Page 22.) 14

Marriage Equality in Tennessee Majority Opinion Rationale: 1. Marriage is a Fundamental Right 2. Violation of Equal Protection to extend only to heterosexual couples 15

Role of History: Majority Opinion "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning." 16

Fundamental Right (1) the right to personal choice in marriage is "inherent in the concept of individual autonomy"; (2) a "two-person union [is] unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. 17

Analysis of Children "This is not to say that the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State." 18

"NO UNION IS MORE PROFOUND THAN MARRIAGE, FOR IT EMBODIES THE HIGHEST IDEALS OF LOVE, FIDELITY, DEVOTION, SACRIFICE, AND FAMILY.... [THE CHALLENGERS] ASK FOR EQUAL DIGNITY IN THE EYES OF THE LAW. THE CONSTITUTION GRANTS THEM THAT RIGHT." Majority Conclusion 19