Breaking a string of roughly three dozen affirmative marriage equality rulings by federal and state judges, a Tennessee state judge denied a divorce to two gay men saying he had to reject a federal constitutional claim for marriage recognition because of a 1972 US Supreme Court ruling and the “public policy exception” to the Constitution's Full Faith and Credit requirement.
“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,” Circuit Court Judge Russell E. Simmons, Jr. wrote on August 5, referring to the 1972 case and to last year's ruling against the Defense of Marriage Act (DOMA). “The Court therefore finds that Baker is still applicable.”
In a divorce petition, Frederick Michael Borman sought to end his marriage to Larry Kevin Pyles-Borman. The men were married in Iowa in 2010, but resided in Tennessee. Iowa does not open its divorce courts to non-residents. Frederick Borman can get a divorce by moving to Iowa and living there long enough to qualify under that state's divorce statute or he can get a divorce in Tennessee, an option available to married heterosexual couples under Tennessee’s statute authorizing recognition of out-of-state marriages.
Tennessee’s Marriage Amendment prohibits the recognition of same-sex marriages, as does the state’s marriage recognition statute. Relying on a steady stream of successful marriage recognition cases that began a year ago in the wake of the DOMA ruling and has continued unbroken, including other litigation in Tennessee, Borman argued that refusal to recognize his marriage violates his 14th Amendment rights under the US Constitution, but Simmons rejected that argument.
Citing Baker v. Nelson, the US 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,” Simmons found Borman’s argument that “doctrinal developments” since 1972 have rendered Baker inapplicable unconvincing.
“The Windsor case is concerned with the definition of marriage, only as it applies to federal laws and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another State,” Simmons wrote. “The premise that ‘doctrinal developments indicate otherwise’ gives a Court discretion to formulate new law by predicting what future appellate decisions will say… 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.”
In a case brought by Edie Windsor, the US Supreme Court last year struck down the portion of DOMA denying federal recognition to valid same-sex marriages allowed under state law.
Simmons wrote that his ruling was binding only in the Borman case and on his court. He rejected Borman’s equal protection argument, writing that Tennessee’s marriage recognition law does not discriminate against same-sex marriages.
“The Anti-Recognition clause clearly does not single out only same-sex marriages to be declared void and unenforceable, but would also declare void and unenforceable marriages within a prohibited degree of relationship and multiple marriages,” Simmons wrote.
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.
Simmons also rejected Borman’s attempt to invoke the Full Faith and Credit Clause of the US Constitution. He noted that both the US Supreme Court and the Tennessee courts have said that this clause does not require a state to apply another state’s law when that law violates its own public policy.
“The laws of Iowa concerning same-sex marriage are 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 US Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa,” he wrote.
The couple, for now, is truly wedlocked in Tennessee. Since last year’s Windsor decision, this has become an even more burdensome status. These men will be treated as married under federal law even if they no longer live together and they are 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 ended.
Though Simmons' ruling came a day before the US Sixth Circuit Court of Appeals heard arguments in six marriage equality cases from Tennessee, Kentucky, Ohio, and Michigan, it took several days to surface in the media. The Sixth Circuit has not yet issued its decision, but two other federal appeals courts have affirmed marriage equality rulings in Utah, Oklahoma, and Virginia.
