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Notice of appeal filed in Tennessee marriage equality case

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The state defendants in Tanco v. Haslam, the case filed by National Center for Lesbian Rights (NCLR) challenging Tennessee’s refusal to recognize same-sex marriages performed outside the state, have fled their notice of appeal of the district court’s decision in favor of the same-sex couples.

The Tennessee case is in a preliminary stage: the district court’s order was a preliminary injunction that required the state to temporarily recognize the marriages of three same-sex couples as legal, while the proceedings in the case are ongoing. The opinion did suggest that the plaintiffs are likely to ultimately succeed in challenging the non-recognition provisions.

The judge didn’t issue a stay of the preliminary injunction, but the state officials have now filed a request in the district court for a stay pending appeal, or alternatively, for a 21-day stay to allow the state to seek a stay pending appeal from the Sixth Circuit Court of Appeals. The basis for the request, according to the memo filed in support of a stay, is that the Constitutional question is a “serious” one, and that “[p]laintiffs will not be irreparably harmed by a stay pending appeal.[.. [a]]lthough the Court has found the circumstances of Plaintiffs Tanco and Jesty “particularly compelling,” their concerns regarding healthcare decisions arising from the birth of their child can be (or could have been) addressed through legal methods such as powers of attorney and advanced directives.”

The appeal will be filed in the Sixth Circuit Court of Appeals, a court that’s set to hear similar cases from Ohio and Kentucky.

Thanks to Kathleen Perrin for these filings

For more information on Tanco v. Haslam from The Civil Rights Litigation Clearinghouse, click here.


  • 1. erasure25  |  March 18, 2014 at 3:21 pm

    Doesn't next of kin come before power of attorney? I seem to recall news stories of anti-gay relatives usurping medical decision making power from a gay partner that had power of attorney because their marriage wasn't recognized. How can the state claim power of attorney is a reasonable protection when anti-gay relatives can so easily usurp that authority?

  • 2. Eric  |  March 18, 2014 at 3:26 pm

    I'm curious how one can contract for wrongful death standing as a non-recognized parent.

  • 3. Scottie Thomaston  |  March 18, 2014 at 3:34 pm

    Yeah, I really don't know. I just wanted to post the quote mainly because I personally found it a little bit horrifying. They're talking about a child's possible death or illness or something and being rather cold about it.

    Also I just realized I linked to the motion but not the memo in support, so I fixed that.

  • 4. Steve  |  March 18, 2014 at 5:30 pm

    You really shouldn't be surprised that Republicans are completely lacking in humanity, empathy and compassion.

  • 5. Michael Grabow  |  March 19, 2014 at 8:28 am

    Obviously unrelated to the topic, but in regards to people being extraordinarly cold, and in my mind psychotic, regarding the death of a child…

    A 16 year old here in VA died at the end of a race this past weekend. The quote from the parents struck me as a bit odd, but I quickly forgot about that when I read the following exchange in the comments (which I don't think are visible in the link below).

    "I am a single man with no children, and I am for reasons like this. If this happened to me it would absolutely ruin my life and I could not go on. Life simply is not fair and sometimes seems worth it."

    Response that multiple people "liked": "But you shouldn't center your whole life around a child. That's putting them in the place of god. You should be able to stand on your own two feet, strong and confident in who you are, not whether your child is alive or not. I pray you are able to find this in the future."

    What in the hell is wrong with some people's brains? "Oh, don't love your child too much, god wouldn't like that…he gets jealous."

  • 6. Michael Grabow  |  March 19, 2014 at 8:28 am

  • 7. karen in kalifornia  |  March 18, 2014 at 4:06 pm

    Ah the point is to have BOTH parents name on the birth certificate for the Tanco-Jesty child who is due any second now. This is far far beyond a power of attorney notice. Both parents will be next of kin to their own child as it should be, hence the preliminary injunction. Sure hope the baby is born soon soon soon and that TPTB at the hospital see the humanity in the preliminary injunction and sign the birth certificate.

  • 8. Mike in Baltimore  |  March 18, 2014 at 6:01 pm

    The state says the plaintiffs can eliminate the problems ". . . through legal methods such as powers of attorney and advanced directives.”

    Problems such as where a hospital decides it knows better than a 'piece of paper'?

    What happens if the 'mother' (the parent carrying the fetus) dies in an auto accident, and the fetus lives? Or the fetus also dies. What legal method will allow the 'legal stranger' to sue the party causing the accident?

    How about if one partner dies of a heart attack tomorrow, dies well before they can be taken to the hospital. What 'piece of paper' will cover that situation?

    My father and my first step-father both died of heart attacks. My first step-father (for less than five months), the following week, had scheduled an appointment with an attorney to start the process of adopting my brother and me. The heart attack cancelled that appointment. What if it had been our mother who had died? Our step-father would have been a 'legal stranger' to my brother and I, so no adoption.

    Legal methods "such as powers of attorney and advanced directives" CAN cover some situations (but not all), but at a cost, a cost that people whose legal marriage is recognized by the state don't have to worry about. Is the state willing to pay any and all such costs to get those legal directives, and to find ways to get around all other problems that may arise?

    Why not recognize (at a minimum) any and all marriages legally performed out of state, and save the state (thus the taxpayers) the time and money of 'work-arounds' when there is already a proven solution already on the books – recognition of any and all marriages legally performed out of state?

    Indiana stopped recognizing the formation of 'common law' marriages in the mid-1950s. Pennsylvania stopped recognizing the formation of such marriages as of January 1, 2005. At my second step-father's funeral in 2004, I met several couples who moved from Pennsylvania to Indiana who had been 'common law' married in Pennsylvania. Indiana recognized their 'marriage', even though it had been about 50 years since Indiana recognized the formation of such marriages in the state of Indiana.

    An out of state marriage legal in the state it was performed recognized in another state. What a novel concept!

  • 9. weaverbear  |  March 18, 2014 at 6:17 pm

    One of the plaintiff couples in the Wisconsin ME case, had durable power of attorney for health care for his partner, and yet when the partner was comatose, said partner's previously supportive father tried to legally have himself declared in charge and he tried to have the comatose son taken off of life support. The man fortunately recovered before he could be taken off life support, so ultimately he did not suffer any nasty complications (like a untimely end). However, does it really benefit up to have to endure legal challenges to our 'family-like' rights, while surviving the stress of a major illness, either our own or our significant other?

    I've been the significant other holding the DPA in my hot little hand standing at my husband's CCU bed. I didn't need anyone challenging me at that vulnerable and painful moment. Having a marriage license, and a state that acknowledges it, is just easier.

  • 10. Ragavendran  |  March 18, 2014 at 7:15 pm

    Meanwhile, Oregon's AG says the state is prepared to start issuing marriage licenses to same sex couples if Judge McShane should decide to strike down the ban:

    The AG's brief is here. Her decision last month not to defend the ban means that there will be no one with standing left to appeal further.

    Oral argument on the motion for summary judgment will take place on April 23.

  • 11. Marriage Equality Round-U&hellip  |  March 19, 2014 at 9:43 am

    […] USA, Tennessee: The state will seek a stay of a judge’s preliminary injunction that required the state to temporarily recognize the marriages of three same-sex couples as legal. full story […]

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