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Tennessee same-sex couples bring fight against marriage recognition ban to Supreme Court, file opening brief

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Opening briefs are due today in the four marriage cases the Supreme Court will take up in late April. The first set of briefs will be filed by the plaintiffs – same-sex couples – challenging their states’ bans and the Sixth Circuit Court of Appeals decision upholding the bans.

The Court will hear cases from four states: Tennessee, Michigan, Kentucky, and Ohio; and the Justices are set to decide the question of whether the Constitution requires the states to allow same-sex couples to get married, as well as the question of whether the Constitution requires the states to recognize same-sex marriages legally performed outside of the state.

The challenge to Tennessee’s ban on recognizing the validity of same-sex marriages performed outside of the state, Tanco v. Haslam, was brought by the National Center for Lesbian Rights (NCLR), and they’re also handling the case in the Supreme Court.

Their opening brief is the second filed in the marriage cases, and you can read it here. Same-sex couples challenging the recognition ban in Ohio filed theirs here.

The story of the couples is told in the brief’s introduction: “Petitioners are three married same-sex couples who moved to Tennessee to pursue their livelihoods. One couple was raising children before moving to Tennessee, and another has given birth to a child while living in Tennessee. Before relocating to Tennessee, each couple was lawfully married in the state where one or both spouses lived. Because Tennessee law prohibits the State from recognizing the legal out-of-state marriages of same-sex couples, the State treats petitioners’ marriages as legal nullities, depriving petitioners and their children of the protections, obligations, benefits, and security that Tennessee readily guarantees to other married couples,” they write.

“For petitioners, therefore, the price of moving to Tennessee was loss of their legal status as married couples and as family members. This cost is also borne by their children, who find themselves without the protections and advantages arising from having married parents. Tennessee has long followed the “place of celebration rule,” and recognizes marriages validly entered into outside the State, including those that could not validly be entered into within Tennessee, except where the marriage would be a crime within the State. Tennessee uniquely singles out for non-recognition the lawful out-of-state marriages of same-sex couples.”

The couples challenge the constitutionality of the ban on the basis that it “impermissibly infring[es] upon their fundamental right to marry and burden[s] their liberty interests in their existing marriages, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment[.]”

The bans are also opposed “as violating their fundamental right to interstate travel; and as impermissibly discriminating against petitioners based on sex and sexual orientation, in violation of the Equal Protection Clause.”

One of the more significant questions that seem to appear in all of the challenges to same-sex marriage bans is the question: “what is marriage?” Is it simply a means to stop opposite-sex couples from procreating irresponsibly, or is it something more.

The brief provides its own answer to that question: “Marriage is an institution of profound emotional and cultural significance and also one of intensely practical and legal import, affecting nearly every aspect of a married couple’s life together. The Constitution shields from state interference the privacy of the marital couple to make many personal, intimate choices within marriage, including those related to parenthood, procreation, and physical intimacy. Accordingly, the Court has recognized that one’s choice of spouse enjoys constitutional protection and has struck down state laws excluding various groups from entering marriage. The Court also has affirmed that the Constitution protects married couples’ liberty and dignity interests in their existing marriages.”

Because of the ban, the filing states, “Tennessee has violated the most fundamental premises that tie us together as a single nation.”

Citing Loving v. Virginia, the brief suggests the ban should be subjected to strict judicial scrutiny – the most rigorous form of review typically applied when a fundamental right is at issue. Loving held that marriage is, indeed, a fundamental right.

Although the Tennessee case involves a ban on recognition of an existing marriage, and not the right to get married, “[t]he right to marry includes the right to be married—that is, the right to be in an enduring, legally protected family unit, entitled to privacy and ongoing respect from the state.”

They stress the point: “Our Constitution’s guarantees of personal liberty protect decisions not only to enter into, but also to maintain, intimate family relationships, including marital relationships.”

Unsurprisingly the couples bolster their case using the decision in United States v. Windsor, the challenge to Section 3 of the so-called Defense of Marriage Act.

That decision discussed the “dignity” of marriage recognition as one of the reasons DOMA is unconstitutional. The decision, written by Justice Anthony Kennedy, used language that could so obviously be applied to a challenge to the states’ bans on same-sex marriage that it provoked a fiery and bitter dissent from Justice Antonin Scalia.

In dissent, Justice Scalia wrote, “In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.”

He suggested that it would be easy to use the words from the decision in a challenge to a state’s ban: “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

The couples took full advantage of Windsor: “This Court in Windsor underscored the liberty interests at stake here when it held that the federal government’s refusal, pursuant to Section 3 of DOMA, to recognize the valid marriages of same-sex couples violated those couples’ due process rights. In so holding, the Court explained that marriage confers upon same-sex couples and opposite-sex couples alike a “dignity and status of immense import.” 133 S. Ct. at 2692. The Court further acknowledged “the equal dignity of same-sex marriages.” Id. at 2693 (emphasis added). As Windsor recognized, when two individuals, regardless of their sex or sexual orientation, enter into a lawful marriage, they enter into a relationship that is protected against unjustified state interference as part of the “liberty” guaranteed by the Constitution’s due process guarantee. As did Section 3 of DOMA, Tennessee’s Non-Recognition Laws “deny the liberty protected by
the Due Process Clause.” Id. at 2695.”

Lastly, the brief urges the Supreme Court to adopt heightened judicial scrutiny – or at least “Windsor‘s ‘careful consideration'” to the Tennessee ban.

In Windsor, the Court didn’t really define which level of scrutiny it was applying. It never said it was using only rational basis, the most lenient judicial scrutiny that most state laws survive. But it also never expressly discussed the four-factor test for heightened judicial scrutiny. The only thing the decision said clearly was that “careful consideration” should be given to laws like DOMA because of the suspicion of animus, or in other words, a suspicion that the law was passed out of plain dislike of a group of people.

Heightened scrutiny applies in challenges to laws and policies that single out people on the basis of an inherent, immutable characteristic that bears no relationship to the person’s ability to contribute to society, and where the group with the characteristic has historically been singled out for discriminatory treatment.

The brief argues that heightened scrutiny should apply because the ban discriminates on the basis of sex, and on the basis of sexual orientation.

Barring that, they note, the bans would fall under any level of scrutiny.

“The State’s interest in the welfare of children is actually undermined rather than furthered by the Non-Recognition Laws, which harm the children of same-sex couples without helping any other children. Moreover, tradition cannot, on its own, justify depriving citizens of their constitutional rights. The constitutional rights of a particular group cannot be put up for popular vote, nor should the enforcement of such rights be denied until such time as the group becomes sufficiently popular in the eyes of elected leaders or a majority of those who choose to vote in a particular election. Finally, the State’s invocation of principles of federalism and sovereignty misses the mark. By depriving same-sex couples of their marriage relationships solemnized by other states, Tennessee frustrates principles of federalism.”

Shannon Minter, Legal Director for NCLR, commented on the case they’re presenting: “We are thrilled to be among the cases before the Court in this historic litigation. As you probably already know, the Tennessee case uniquely provides a window into an important aspect of this issue. It is the only case brought by same-sex couples who were legally married before moving to a state that does not recognize their marriages. Our brief focuses on how the current checkerboard of state marriage laws creates an intolerable situation for same-sex couples and their children and undermines our Constitution’s promise that we are all citizens of one nation.”

The Tanco case, along with the other three, will be argued sometime in late April.

Thanks to Equality Case Files for these filings


  • 1. LK2013  |  February 27, 2015 at 7:59 am

    Yahoo! SCOTUS can't resolve this fast enough.

    Meanwhile, bigots in Texas celebrate 10 years of codified marriage discrimination:

  • 2. hopalongcassidy  |  February 27, 2015 at 8:37 am

    The comments on this page are ripping them new azzholes for the most part

    on edit: As someone noticed, their "10 year" celebration is a little premature…the TX amendment won't be 10 years old until November…if it lives that long. HAHAHAHA

  • 3. guitaristbl  |  February 27, 2015 at 12:00 pm

    They know why they celebrate it 9 months early 😉

  • 4. Zack12  |  February 27, 2015 at 9:47 am

    The cruelty and arrogance of the bigots never ceases to amaze me.

  • 5. AndresM11  |  February 27, 2015 at 8:04 am

    Great!! Another historic day in our fight for equality 🙂

    I can't wait to read all these briefs. I'm sure our legal teams did a brilliant work 🙂

  • 6. Mike_Baltimore  |  February 27, 2015 at 10:11 am

    I'm still laughing about Scalia's comments in dessent in the Windsor case, then his recent 'I'm not anti-gay' comments given at Lisner Auditorium in DC when he and and Ruth Bader Ginsberg shared the stage.

    Yes, Fat Tony, we believe you, every word you say.

  • 7. 1grod  |  March 1, 2015 at 7:48 am

    Best Arguments from these briefs:… ……
    Having four cases before the Court was a sound approach to advance the cause of equality because the lives of 15 couples with 18 children and one adult dependent are before the Supreme Court Justices as a proxy for all LGBT citizens and their familes. Their compelling stories, briefly told, illustrate the challenges and opportunities to be no different than their neighbors but for one thing acceptance [ non-state recognition of their valid marriages and/or non-entitlement to the benefits and responsibility of marriage] – which their neighbours take for granted. Their collective story resonates! But they also tell the tale of the many disregarding ways fellow Americans disrespects/excludes those who are a tad different while proclaiming their way of life to be an example to the world. Hypocrisy. Judges J. Sutton and D. Cook take a hard look at yourselves as the great tides and currents of history pass you by….. "If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams" – Martha Daughtery

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