Tennessee lawmakers are weighing in on a bill that would create separate bureaucratic lanes for men and women who would enter into traditional marriages, allowing common law marriage licenses not allowed for same-sex couples.
The measure, which echoes the long-held “separate but equal” doctrine, is likely to pose a legal challenge if Tennessee’s Republican-controlled legislature passes it.
A State House committee held a hearing Wednesday on the bill, HB 223, following criticism of the original version, which would remove the minimum age for marriage in Tennessee – while legitimizing a possible child marriage while Republicans push a false narrative about national stage pedophilia.
The bill was amended late last month to include a minimum age of 18.
State Representative Tom Leatherwood, the Republican who introduced it, has repeatedly defended the original language, however, arguing that the court system would prevent underage marriage.
“It’s my position that the bill doesn’t allow minors to marry, but I can see and understand how this can be a misunderstanding,” Leatherwood said at Wednesday’s hearing.
He emphasized in a statement in HuffPost that the bill “does not change the current law on marriage and does not allow minors to marry.”
Instead, Leatherwood said, it creates “another way of marriage” through “common law” to “conscientious objection based on deeply held religious beliefs, which some priests and individuals have with current law and certificate.”
Tennessee does not currently recognize common-law marriage, a term that usually refers to a union that is legally recognized without a marriage license because the couple has lived together for several years. The bill would require the state to protect any county clerks who refuse to issue marriage licenses based on their personal beliefs.
“Calling it common law does not change the fact that they are creating a ‘separate but supposedly equal’ option, which violates the overfill constitutional requirement that gay couples get all the same benefits of marriage.”
– Abby Rubenfeld, a Nashville civil rights attorney
Typically, couples apply for a marriage license and fill out a form after their ceremony, which they give to the state as a record. Marriage provides an array of legal and financial benefits, a major reason why the US Supreme Court ruled in 2015 that same-sex couples also have the right to marry. In that landmark case, Overbergfel v. Hodges, every state must recognize same-sex marriage.
Abby Rubenfeld, a Nashville civil rights attorney who worked to end Tennessee’s gay marriage ban, told the Halfpost that the bill was “a shameless attempt to overturn Obergfeld’s verdict.” Rubenfeld filed the lawsuit, which included Tennessee in Ohio, Michigan and Kentucky, as well as Supreme Court cases.
“First, calling it a common law marriage does not change the fact that they are creating a ‘separate but supposedly equal’ option, which violates the constitutional requirement that gay couples enjoy all the same benefits of marriage,” Reubenfeld wrote in an email.
“I already have our legal team together and ready to challenge this discriminatory law – and it will again waste millions of dollars in taxpayer funds when we win and collect our fees,” he said.
Although Leatherwood’s proposal will not change whether gay couples can get married in Tennessee – they still can – it will create a state-sanctioned distinction between straight marriages and same-sex marriages based on the religious beliefs of certain people. Instead of a license, straight couples can ask for a special certificate.
But Wednesday’s hearing found that lawmakers were still unclear about exactly how the new “marriage path” would work. Leatherwood said couples do not have to return new certificates to the state to keep records, which prompted another lawmaker to question whether the marriages would be legal.
“It’s a strange thing they’re trying to do here,” Sarah Warbello, the legal director of the Human Rights Campaign, told Halfpost. “The law itself is not very clear about how these work.”
Reubenfeld also rejected the notion that the current process has any effect on priests or other religious leaders.
“If ministers or imams do not want a specific marriage, they do not have to. Easy solution, ”he said.
