The String is Broken – Tennessee Judge Rules Against Marriage Recognition

After a string of about three dozen affirmative marriage equality rulings by federal and state judges, including 2-1 rulings by two federal circuit courts of appeals, a Tennessee judge, Roane County Circuit Court Judge Russell E. Simmons, Jr., has departed from the growing consensus and ruled on August 5 that the court is bound to reject a federal constitutional claim for marriage recognition because of Baker v. Nelson and the public policy exception to the requirement of Full Faith and Credit.

The context for this ruling is a divorce petition filed by Frederick Michael Borman, who seeks to end his marriage to Larry Kevin Pyles-Borman.  The men were married in Iowa in 2010, but then and today have continuously resided in Roane County, Tennessee.   Iowa does not open its divorce courts to non-residents, so the only ways that Frederick Borman can get out of this marriage would be either to move to Iowa and live there long enough to qualify under the state’s divorce statute or to get a divorce in his home state of Tennessee, as most different-sex married couples would be able to do under Tennessee’s statute authorizing recognition of out-of-state marriages.

The problem for Borman is that Tennessee’s Marriage Amendment prohibits the recognition of same-sex marriages, as does the state’s marriage recognition statute.  Indeed, Tennessee’s marriage recognition statute, T.C.A. sec. 36-3-113(d), forbids recognition of any out-of-state marriage that could not be contracted in Tennessee, not just same-sex marriages.

Building on a steady stream of marriage recognition cases that began a year ago in Ohio and have continued unbroken over the ensuing year (including other litigation in Tennessee), Borman argued that refusal to recognize his marriage in this context violates his 14th Amendment rights, but Judge Simmons rejected the contention.

First, as to Baker v. Nelson, the Supreme Court’s 1972 dismissal of an appeal from a marriage equality lawsuit in Minnesota on the ground that it presented “no substantial federal question,” Judge Simmons observed, “Although the United States Supreme Court has had opportunities to overrule the Baker decision, it has refused to take that position even in the decision on which the Plaintiff relies, which is United States v. Windsor.  The Court therefore finds that Baker is still applicable.”

Simmons noted Borman’s argument that “doctrinal developments” since 1972 have rendered Baker inapplicable, but found it unconvincing.  “The Windsor case is concerned with the definition of marriage, only as it applies to federal laws,” he wrote, “and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another State.  The premise that ‘doctrinal developments indicate otherwise’ gives a Court discretion to formulate new law by predicting what future appellate decisions will say other than what they have already said.  The decision of this Trial Court will only be binding on this case and on this Court.  It would be more productive for an appellate court whose opinions would have more precedential authority to delve into this analysis.  For purposes of passing this issue to the appellate courts without discussion, this Court will find that the doctrinal development of the question whether Tennessee must accept another State’s same-sex marriage to be valid has not developed sufficiently to overrule precedent cases.”

As to Borman’s equal protection argument, Judge Simmons rejected the idea that Tennessee’s marriage recognition law discriminated because Borman is in a same-sex marriage.  “The Anti-Recognition clause clearly does not single out only same-sex marriages to be declared void and unenforceable,” he asserted, “but would also declare void and unenforceable marriages within a prohibited degree of relationship and multiple marriages.”  In other words, Tennessee’s ban extends to recognition of first-cousin and polygamous marriages as well, and therefore is not solely focused on same-sex marriages.   Therefore it cannot be the target of an equal protection claim, since such a claim would invoke a disparate impact theory, which is not available for such a claim.  Tennessee adopts the general policy of not recognizing marriages that could not be performed in Tennessee for any reason, which has the incidental effect of not recognizing same-sex marriages.

While Simmons conceded that the right to marry is a fundamental right, he observed that Tennessee has reserved that fundamental right to different-sex couples.  “The Court also find that this should be the prerogative of each State.  That neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens.  One reason for this is that there is a divergence of opinion on this issue, and if Tennessee laws have a rational basis and a reasonable relationship to a legitimate state interest, then Tennessee’s laws should not be found invalid because another opinion is available.”

Simmons proceeded to adopt wholesale and lift from “the State’s brief on the issue of whether or not a law defining marriage as one (1) man and one (1) woman has a rational basis” a full page-and-a-half from that brief, whose source is not identified.  (Since the state is not a party to this case, which is a divorce action between two men, one wonders whether the state intervened or filed an amicus brief, or whether Simmons just lifted this from Tennessee’s brief to the 6th Circuit in the pending marriage recognition appeal in a different case?)  The excerpted argument, which has been justly ridiculed in the press, is Tennessee’s version of the procreation justification, which was forcefully advocated by its counsel before the 6th Circuit last week.

Simmons also rejected Borman’s attempt to invoke the Full Faith and Credit Clause of the Constitution.  He noted that both the Supreme Court and the Tennessee courts have said that this Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.”  “The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee’s laws, and Tennessee’s own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa,” he wrote, ungrammatically but without any mistake of meaning.

Thus, Mr. Borman and Mr. Pyles-Borman are wedlocked in Tennessee.  Since last year’s Windsor decision, this has become an even more burdensome status than it was before.  These men now must continue to file joint federal tax returns and be treated to the responsibilities of marriage under federal law, even if they no longer live together or desire to remain married, and of course each of them is barred from forming a legal relationship with a new partner, since no marriage equality state allows somebody to marry a new partner unless any prior marriage, domestic partnership or civil union has been ended.  As a purely practical matter, the court’s refusal to recognize this marriage for the limited purpose of granting a divorce would seem to have virtually no legitimate policy justification.  It certainly has nothing to do with the state’s interest in channeling the procreative activity of heterosexuals into marriage for the benefit of the resulting children, which is Tennessee’s main policy argument for resisting marriage equality.  And if Tennessee is opposed to same-sex marriages, one wonders why it would object to a court terminating such a marriage!

This is a limited decision applicable only to these parties and having no precedential force in any other court.  On the other hand, Judge Simmons may be providing us with a preview of what to expect from the 6th Circuit, as some of his assertions sound strikingly like those implied in questions raised by Circuit Judge Jeffrey Sutton at the 6th Circuit oral argument.  It is worth noting, however, that this decision, dated August 5, was released to the parties the day before the 6th Circuit argument, and only surfaced today because a SCOTUSblog reader, hearing about the case, was able to get a copy of the opinion for reporter Lyle Denniston, who posted it on the blog.

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