Skip to content
Tennessee lawmakers consider bill that would separate same-sex and same-sex marriages

Tennessee lawmakers are weighing a bill that would create a separate bureaucratic path for men and women entering traditional marriages by allowing them to obtain an unauthorized common-law marriage certificate for same-sex couples.

The measure, evoking the long-defeated “separate but equal” doctrine, would likely spark a legal challenge if it passes through Tennessee’s Republican-controlled legislature.

A state House committee held a hearing on the bill, HB 223, on Wednesday following fierce criticism of the original version, which would have eliminated the minimum age for marriage in Tennessee – potentially making the legal child marriage at a time when Republicans on the national stage continue to push false narratives about pedophilia.

The bill was amended late last month to include a minimum age of 18.

State Representative Tom Leatherwood, the Republican who introduced it, however, repeatedly defended the original language, saying the court system would prevent underage marriage.

“I am of the opinion that the bill would never have allowed minors to marry … but I can see and understand how that could have been misunderstood,” Leatherwood said during Wednesday’s hearing.

He claimed in a statement to HuffPost that the bill “does not change current law regarding marriage and does not allow minors to marry.”

Instead, Leatherwood said, it creates “another route to marriage” via the “common law” to address the “conscientious objections, based on deeply held religious beliefs, that a number of pastors and ‘individuals have with the current law and certificate’.

Tennessee does not currently recognize common-law marriage, a term that generally refers to a legally recognized union without a marriage license because the couple have lived together for several years. The bill would also require the state to defend any county clerk who refuses to issue marriage licenses based on personal beliefs.

“Just calling it common law marriage doesn’t change the fact that they create a ‘separate but supposedly equal’ alternative, which violates Obergefell’s constitutional requirement that same-sex couples receive all same benefits of marriage.”

– Abby Rubenfeld, Nashville civil rights attorney

Typically, couples apply for a marriage license and fill out a form after their ceremony, which they submit to the state as a record. Marriage offers an array of legal and financial benefits, which is a big reason why the U.S. Supreme Court ruled in 2015 that same-sex couples also have the right to marry. This landmark case, Obergefell v. Hodges, demanded that every state recognize same-sex marriage.

Abby Rubenfeld, a Nashville civil rights attorney who worked to end Tennessee’s ban on same-sex marriage, told HuffPost the bill was “a blatant attempt to circumvent Obergefell’s decision.” Rubenfeld filed the lawsuit that led to Tennessee’s inclusion in the Supreme Court case alongside Ohio, Michigan and Kentucky.

“First of all, just calling it common law marriage doesn’t change the fact that they create a ‘separate but supposedly equal’ alternative, which violates Obergefell’s constitutional requirement that couples of same sex all receive the same benefits of marriage,” Rubenfeld wrote in an email.

“I’ve already assembled our legal team and I’m ready to challenge this discriminatory law as well – and it will waste millions of taxpayer dollars again when we win and recover our costs,” she said. .

While Leatherwood’s proposal would not change if same-sex couples could marry in Tennessee—they still could—it would enact a state-sanctioned division between heterosexual marriages and same-sex marriages based on the religious beliefs of some people. Instead of a license, heterosexual couples could apply for a special certificate.

But Wednesday’s hearing showed lawmakers were still unclear about exactly how the new “path to marriage” would work in practice. Leatherwood said couples would not be required to return the new certificate to the state for record keeping, prompting another lawmaker to question whether the marriages would be legitimate.

“It’s a very strange thing they’re trying 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 works.”

Rubenfeld also pushed back against the suggestion that the current process has an effect on pastors or other religious leaders.

“If ministers or imams don’t want to perform certain marriages, they don’t have to. A simple solution,” she said.

Not all news on the site expresses the point of view of the site, but we transmit this news automatically and translate it through programmatic technology on the site and not from a human editor.