FACT filing argues Obergefell doesn't apply to parental rights
After a first motion to intervene in a lesbian couple's custody battle in Knoxville went nowhere, the Family Action Council of Tennessee is back with a second try to prevent a non-biological female parent from being considered the parent of her child. The filing comes on the heels of several FACT-sponsored pieces of legislation intended to do the same thing, one of which passed the House on Thursday.
Back in September, 53 legislators signed on to a motionthat argued their "legislative power and process will be impeded, impaired, and/or nullified" if a court were to find a 1977 law about artificial insemination "to apply to any persons other than a man and woman joined together as 'husband' and 'wife.'" The Knoxville couple, Erica and Sabrina Witt, were legally married in Washington, D.C., before the U.S. Supreme Court's Obergefell v. Hodgesruling legalizing gay marriage everywhere — which meant when their child was born in Tennessee, as the non-biological parent, Erica's name was not placed on the birth certificate.
The 1977 statute states, "a child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife." When Sabrina filed for divorce, she requested and was granted sole custody, as a Knoxville judge decided the statute applied only to male husbands, which Erica is not. Legislation has been introduced this session to delete that wording entirely, meaning all non-biological parents, male and female, gay or straight, could potentially have to go through the adoption process.
Last fall, Attorney General Herb Slatery's office filed a memorandum in the case addressing Obergefell's reach and whether the statute applied only to male husbands or spouses in general. As former Poststaffer J.R. Lind reported at Patch.com:
The memorandum notes that in the United States Supreme Court case Obergefell v. Hodges, the court ruled that state laws are "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples," which would seemingly make the law unconstitutional, because it treats the male spouses of women different from female spouses. But the brief goes on to say another portion of state code requires words in the masculine gender include their feminine or neuter counterparts, except when "the contrary intention is manifest." The AG's brief notes that the purpose of the law Weaver seeks to repeal is to legitimize children born via artificial insemination and that replacing "husband" and "wife" with "spouse" does nothing to change that intent.
"The legislature's use of the words 'husband' and 'wife' merely reflects the fact that only opposite-sex marriages were recognized in Tennessee when the statute was enacted in 1977," it continues, concluding that the law should be held as constitutional, that the judge's ruling was counter to the law and that the spouses of women who give birth via artificial insemination — be it a husband or wife — be presumed as a parent.
Slatery's interpretation has infuriated FACT president David Fowler, who, when announcing the new motion Friday, ranted about judges as "a black-robed oligarchy."
"What our attorney general seems not to understand is that substituting the word 'spouse' for the word 'husband' is a change in the underlying public policy reflected in the statute. It is a change from a belief that complementarity exists between the biological sexes and that it has value in the nurture of a child to a belief that there either is no complementarity between the sexes or, if there is, it makes no difference in the life of a child," Fowler wrote.
And it seems like a sizable majority of the Tennessee Legislature agrees with him — the new filing has 71 legislators on board, 52 members of the House and 19 members of the Senate.
The motion to intervene states, in part, that the legislators "interest will be impeded, impaired, restricted, and/or nullified" if "the Court intrudes on the policy prerogatives constitutionally committed to Movant-Intervenors by (a) determining for itself whether the complementarity of male and female is legally irrelevant and of no policy regard with respect to the interests, nurture, and well-being of the children of this state (b) applying that determination to the statute in such a way as to deprive children of the influence and nurture of a father, and (c) thereby establishing a juridical principle erasing the significance of the difference between mothers and father that is anti-historical, of far-reaching legal and policy consequence, and contrary to legislative intention."
However, it's still unclear what, if any, standing the politicians have to intervene in a single divorce case. Legal experts interviewed by VICElast fall said the standing was untenable.
Signing on to the motion were state Reps. Bill Dunn (Dist. 16), Glen Casada (Dist. 63), Mike Carter (Dist. 29), David Alexander (Dist. 39), Harry Brooks (Dist. 19), Kevin Brooks (Dist. 24), Sheila Butt (Dist. 64), David Byrd (Dist. 71), John Crawford (Dist. 1), Barry Doss (Dist. 70), Jimmy Eldridge (Dist. 73), Jeremy Faison (Dist. 11), John Forgety (Dist. 23), Ron Gant (Dist. 94), Tilman Goins (Dist. 10), Curtis Halford (Dist. 79), David Hawk (Dist. 5), Matthew Hill (Dist. 7), Timothy Hill (Dist. 3), Gary Hicks (Dist. 9), Andy Holt (Dist. 76), Dan Howell (Dist. 22), Bud Hulsey (Dist. 2), Kelly Keisling (Dist. 38), Sabi Kumar (Dist. 66), William Lamberth (Dist. 44), Mary Littleton (Dist. 78), Ron Lollar (Dist. 99), Susan Lynn (Dist. 57), Pat Marsh (Dist. 62), Jimmy Matlock (Dist. 21), Judd Matheny, (Dist. 47), Debra Moody (Dist. 81), Mark Pody (Dist. 46), Dennis Powers (Dist. 36), John Ragan (Dist. 33), Jay Reedy (Dist. 74), Courtney Rogers (Dist. 45), Tim Rudd (Dist. 34), Cameron Sexton (Dist. 25), Paul Sherrell (Dist. 43), Jerry Sexton (Dist. 35), Mike Sparks (Dist. 49), Bryan Terry (Dist. 48), Rick Tillis (Dist. 92), Micah Van Huss (Dist. 6), Terri Lynn Weaver (Dist. 40), Dawn White (Dist. 37), Mark White (Dist. 83), Ryan Williams (Dist. 42), Tim Wirgau (Dist. 75), and Jason Zachary (Dist. 14).
Also signing on were state Sens. Mike Bell (Dist. 9), Paul Bailey (Dist. 15), Richard Briggs (Dist. 7), Rusty Crowe (Dist. 3), Mae Beavers (Dist. 17), Janice Bowling (Dist. 16), Mark Green (Dist. 22),Todd Gardenhire (Dist. 10), Dolores Gresham (Dist. 26), Ferrell Haile (Dist. 18), Joey Hensley (Dist. 28), Ed Jackson (Dist. 27), Jack Johnson (Dist. 23), Kerry Roberts (Dist. 25), Steve Southerland (Dist. 1), John Stevens (Dist. 24), Jim Tracy (Dist. 14), Bo Watson (Dist. 11), and Ken Yager (Dist. 12).
