As virtually everyone in the country as well as in Tennessee will have noted, at the end of June the United States Supreme Court ruled, in Obergefell v. Hodges, that same-sex couples have the constitutionally protected right to marry. The issue of gay rights has become the preeminent civil rights issue of this generation and the impact of the Supreme
Court’s monumental decision is, naturally, far-reaching though specific outcomes are difficult to predict at this nascent stage. Nonetheless, at its most basic, Obergefell gave homosexual couples the right to wed in Tennessee, as well as the remainder of the country, and that has an immediate and profound impact on family law in Tennessee. Though it would be fair to say at this point that there are more questions than answers, the first and most obvious question is how will Tennessee deal with this group that, rather suddenly, has all the inherent rights of wedded partners?

Some background of the facts, arguments and procedural history of the Tennessee cases that were also considered along with Obergefell is useful. The Tennessee Constitution in Article XI § 18 was amended, after passing consecutive sessions of the General Assembly in 2004 and 2005 and passed by referendum in 2006, to prohibit marriage between any persons or groups of people other than a single male and a single female. Article XI § 18 further specifically refused to recognize marriages other than those defined in the Amendment from other jurisdictions stating, “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.”[1] The legislature further reiterated this point by passing Tenn. Code Ann. § 36-3-113, which prohibited the issuance of marriage licenses to persons who do not conform with the traditional definition of a marriage, stating that Tennessee’s “public policy” was to maintain marriage as between “one (1) man and one (1) woman” so as to “provide the unique and exclusive rights and privileges to marriage.”[2] 36-3-113 also specifically states that Tennessee will not recognize marriages that were performed in other states or jurisdictions that do not meet the above definition contained in the statute.

In Tennessee, three cases — Tanco v. Haslam, DeKoe v. Haslam and Espejo v. Haslam — made their way through Federal District Court in the Middle District of Tennessee and directly challenged Tennessee’s constitutionally based refusal to recognize their marriages from other states. All three cases had similar factual backgrounds involving gay couples relocating to Tennessee after already having been married in another state and each couple suing to have Tennessee recognize their marriage once they became residents of Tennessee. The plaintiffs explicitly challenged the refusal to recognize their out-of-state marriages, but not the authority of the state to prevent new same-sex marriages to take place in Tennessee, stating that they were being denied their Due Process rights as well as Equal Protection that they should be afforded by the United States Constitution. This was a sufficient basis for the District Court to issue a preliminary injunction preventing the State of Tennessee from enforcing Article XI § 18 and Tenn. Code Ann. § 36-3-113, but the District Court narrowed its ruling to the three sets of plaintiffs in the consolidated cases alone, choosing not to expand the ruling to future plaintiffs.

The injunction was issued by the District Court in March 2014 and was appealed by the State of Tennessee to the Sixth Circuit. As Obergefell made its way to the United States Supreme Court, these three companion cases from Tennessee also became companion cases with Obergefell when the Sixth Circuit denied all of the plaintiffs’ appeals throughout the Circuit, making it the first Circuit Court in the nation to rule that the various laws and Amendments preventing gay marriage in Tennessee, Kentucky, Ohio and Michigan were constitutional. Previously, all other Circuits asked to review the same issue had ruled that similar laws and state constitutional amendments were unconstitutional in the various states that enacted them. The ensuing circuit split gave the impetus needed for the Supreme Court to grant certiorari in 2015.

In its opinion in the Obergefell case, which included the aforementioned Tennessee cases, issued on June 26, the majority of the United States Supreme Court agreed with the primary assertion of the plaintiffs from all of the consolidated cases, stating: “The right to personal choice regarding marriage is inherent in the concept of individual autonomy” that is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.[3] Writing the opinion for the majority, Justice Kennedy discussed all of the benefits and privileges in law that gay couples should be entitled to utilize just as heterosexual couples may such as “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules” as well as noting that “valid marriage under state law is also a significant status for over a thousand provisions of federal law.”[4]

Some of these rights are more central to family law than others, but valid marriage serves as the threshold requirement for all of them, and now, after the Court’s ruling, same-sex couples who choose to wed will be automatically eligible for all of them, just as heterosexual couples are and have been for generations. Needless to say, this expansion of the number of people eligible for matrimony will open the door to increased need for the advice of family law attorneys regarding the inherent rights of married couples under the law.

But what exactly will this landmark Supreme Court decision mean for the future of domestic law in Tennessee specifically? Now, surely, there will be people seeking the services of family law attorneys that had far less use for them in the past. Many existing marriages, especially those with children, will need to be recognized and proper steps taken to have the parents in those marriages have equal parenting rights to the children, if those steps have not already been taken. Questions need to be answered about how the parentage of children from same-sex couples will be properly documented so as to insure the rights of both parents, not merely the biological ones. Gay couples seeking to wed may well want anti-nuptial agreements. Same-sex couples have already taken advantage of adoption services provided by family law attorneys in Tennessee and will continue to do so based on the alternate and varied forms of procreation used in conceiving their children. Gay couples already married will undoubtedly seek divorces and other post-divorce services. In August, the Office of the Attorney General announced its intent to drop its opposition to a case for divorce filed by two men who now reside in Tennessee, but were married in Iowa, declaring that after Obergefell, they would not object to their suit.

There are some unique questions for same-sex couples. If a couple was married in more than one state because of former non-recognition, what is the actual date of the marriage, a critical question for a family law attorney should the couple then seek a divorce? Many of Tennessee’s statutes are not written in gender neutral language, and this could create problems in the short term for same-sex couples. Most standard forms and language used in divorce pleadings do not contemplate same-sex couples and will have to be altered. How can the vital records for children be altered to reflect their legal parentage in an effective manner?

Yet the answer to the primary question may be, in actuality, that, other than volume, not much will be different in a family law attorney’s approach to representing a homosexual client from that of a heterosexual client. This was the intent of the plaintiffs in Tennessee all along: to demand that they be treated like every other person who resides in Tennessee.

Notes

1. Tenn. Constitution Article XI § 18.
2. Tenn. Code Ann. § 36-3-113(a).
3. Obergefell v. Hodges, 576 U.S. ____, (Slip op. at 10-12) (2015)
4. Obergefell v. Hodges, 576 U.S. ____, (Slip op. at 17) (2015).

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is board certified as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.