Amid several bills introduced in Tennessee that have attracted national attention this year, none has sparked as much alarm among both Republicans and Democrats as a proposal that would create a new marriage contract specifically designed to exclude same-sex couples.
Supporters argue the measure is needed to give religious officials, couples and others opposed to gay marriage an option that wouldn’t conflict with their beliefs.
Critics say it’s a deliberate effort to circumvent the Supreme Court’s 2015 ruling legalizing gay marriage and could lead to costly legal battles. Many have noted that the bill initially failed to include a minimum age — an omission that has opened the door to widespread mockery. Some worry the move helped reinforce stereotypes regarding Tennessee as backward.
The bill’s Republican sponsors have downplayed concerns that the age omission would result in a wave of child marriages, but they’ve since introduced an amendment that would incorporate an age requirement of 18 years old or older.
Who would be eligible for common law marriage contract?
If enacted, the legislation would allow opposite-sex couples to fill out marriage “contracts” based on common law marriage principles. Typically, common law marriage refers to the legal protections of marriage given to couples who live together as a married couple, but who haven’t gotten a state marriage license.
Just eight states allow common law marriages, according to the National Conference of State Legislatures, and Tennessee isn’t one of them. It’s a practice that in America has dated back to Colonial times when it was sometimes difficult to find a preacher to solemnize a marriage.
The Tennessee bill, however, specifically states the contract would only apply to “one man and one woman,” thereby banning same-sex couples from pursuing the option. Opposite-sex couples wouldn’t have to file the contract with the state, meaning county clerks wouldn’t have to recognize the contracts like they do with marriage licenses.
“This legislation has kept me up at night,” Republican Rep. Johnny Garrett told lawmakers earlier this week.
Garrett, who is an attorney, said the lack of state recognition would mean couples would likely be unable to claim benefits and be denied rights typically given to married couples. He also pointed out that there’s nothing prohibiting individuals from entering into multiple contracts.
“We’re going to legalize polygamy in this state,” he warned.
Republican Rep. Tom Leatherwood countered that people could commit fraud using marriage licenses and added that he believed courts would recognize the contracts so that individuals could receive spousal benefits.
“All this bill does is give an alternative form of marriage for those pastors and other individuals who have a conscientious objection to the current pathway to marriage in our law,” Leatherwood said during a legislative hearing in March.
Would the bill allow child marriage?
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When the bill was first introduced in the House, Democratic Rep. Mike Stewart quickly pointed out that the proposed common law marriage contract did not include an age minimum.
Currently, there is no federal minimum age requirement to be married. Instead, that decision is left to the states. For Tennessee, the minimum age to obtain a marriage license is 18, but 17-year-olds can still be married as long as they have parental consent. It is illegal for minors ages 11-17 to be married under a 2018 state law.
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The proposed common law marriage bill wouldn’t automatically legalize child marriages. But the omission of an age requirement sparked widespread criticism that it would create a loophole allowing children to marry.
After downplaying child marriage accusations, the sponsors have since tweaked the bill to say it would apply to opposite-sex couples who “both have attained the age of majority,” which is 18 years old in Tennessee.
But that hasn’t stopped the skepticism from Democrats and Republicans who worry the bill is setting up the state for a costly lawsuit.
“This argument that it is going to set up two separate paths to marriage is blatantly unconstitutional in violation of the Obergefell decision, which is the law of the land,” said attorney Abby Rubenfeld, who in 2013 helped lead the challenge to Tennessee’s ban on same-sex marriage.
The suit, which was filed by Rubenfeld, was included in the SCOTUS case that eventually legalized gay marriage in 2015.
“We won that case before the Supreme Court and we also obtained, as you probably know, a substantial award in attorney fees and costs — which Tennessee taxpayers had to pay,” Rubenfeld warned lawmakers. “It can be expensive for our state to adopt unconstitutional laws.”
Who is supporting the proposal?
The fate of the bill remains unknown. Despite having nearly 20 Republican cosponsors, GOP Senate Speaker Randy McNally told reporters this week that he wouldn’t support it due to the lingering constitutional problems. The bill has been scheduled for several weeks to be debated before the full Senate, but has been delayed several times at the request of the sponsor.
Over in the House, the bill was discussed in a committee this week, but lawmakers ran out of time before taking a vote. It’s slated to come up again next Wednesday.
“I don’t know if it has the votes or not,” Republican House Speaker Cameron Sexton told reporters recently. “I guess we’ll find out next week.”