Lawmakers in Tennessee are weighing a bill that would create a separate bureaucratic lane for men and women entering into traditional marriages by allowing them to obtain a certificate of common-law marriage not permitted for same-sex couples.
The measure, evoking the long-invalidated “separate but equal” doctrine, would likely spark a legal challenge if it passes Tennessee’s Republican-controlled legislature.
A state House committee held a hearing on the bill, HB 223, on Wednesday following searing criticism over the original version, which would have eliminated the age minimum for a marriage in Tennessee ― potentially making child marriage legal at a time when Republicans on the national stage keep pushing false narratives about pedophilia.
The bill was amended late last month to include an age minimum of 18.
State Rep. Tom Leatherwood, the Republican who introduced it, has repeatedly defended the original language, however, by arguing that the court system would prevent underage marriage.
“It’s my position that the bill would have never allowed minors to get married ... but I can see and understand how that might have been misunderstood,” Leatherwood said at Wednesday’s hearing.
He asserted in a statement to HuffPost that the bill “changes nothing in current law regarding marriage and does not allow minors to get married.”
Instead, Leatherwood said, it creates “another pathway to marriage” via “common law” to address “the conscientious objections, based on deeply held religious convictions, that a number of pastors and individuals have with the current law and certificate.”
Tennessee currently does not 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 also require the state to defend any county clerks who refuse to issue marriage licenses based on their personal beliefs.
“Simply calling it common law marriage does not change the fact that they are creating a ‘separate but supposedly equal’ alternative, which violates the Obergefell constitutional requirement that same-sex couples receive all the same benefits of marriage.”
Generally, couples apply for a marriage license and fill out a form after their ceremony, which they give to the state as a record. Marriage affords an array of legal and financial benefits, which is a big reason why the U.S. Supreme Court decided in 2015 that same-sex couples also have a right to be married. That landmark case, Obergefell v. Hodges, required every state to recognize same-sex marriage.
Abby Rubenfeld, a Nashville civil rights attorney who worked to end Tennessee’s same-sex marriage ban, told HuffPost the bill is “a blatant attempt to get around the Obergefell ruling.” Rubenfeld filed the lawsuit that led to Tennessee being included in the Supreme Court case alongside Ohio, Michigan and Kentucky.
“First of all, simply calling it common law marriage does not change the fact that they are creating a ‘separate but supposedly equal’ alternative, which violates the Obergefell constitutional requirement that same-sex couples receive all the same benefits of marriage,” Rubenfeld wrote in an email.
“I already have our legal team back together and ready to challenge this discriminatory law as well ― and that will again waste millions in taxpayer funds when we win and collect our fees,” she said.
While Leatherwood’s proposal would not change whether gay couples could get married in Tennessee ― they still could ― it would enact a state-sanctioned division between straight marriages and gay marriages on the basis of certain people’s religious beliefs. Instead of a license, straight couples could ask for a special certificate.
But Wednesday’s hearing showed that lawmakers were still hazy about how exactly the new “pathway to marriage” would work in practice. Leatherwood said that couples would not be required to return the new certificate to the state for record-keeping, which prompted another lawmaker to question whether the marriages would be legitimate.
“It’s a very strange thing that they’re attempting to do here,” Sarah Warbelow, legal director of the Human Rights Campaign, told HuffPost. “The legislation itself is not very clear on how this all operates.”
Rubenfeld also pushed back on the suggestion that the current process has any effect on pastors or other religious leaders.
“If ministers or imams do not want to perform particular weddings, they do not have to do so. Simple solution,” she said.