Gay Couples Ask Federal Court To Force Tennessee To Issue Them Marriage Licenses

By Barbara Hollingsworth | November 21, 2013 | 5:07pm EST


Veterinarians Sophy Jesty and Valeria Tanco of Knoxville outside federal courthouse in Nashville, TN (AP photo)

( – Four gay couples who filed a federal lawsuit last month challenging Tennessee’s refusal to recognize their same-sex marriages asked a federal judge for a preliminary injunction Wednesday to force the state to grant them marriage licenses while the case is being heard.

Three of the couples - Sophy Jesty and Valeria Tanco, Kellie Miller and Vanessa DeVillez, and Ipje DeKoe and Thomas Kostura  - were married in the State of New York in 2011.

Johno Espejo and Matthew Mansell wed in California in 2008, two years after Tennessee amended its state constitution to define marriage as between one man and one woman.

In a 2006 referendum, Tennessee voters overwhelmingly approved the Marriage Protection Act Amendment by a vote of 81 to 19 percent.

The amendment states: “Tennessee’s marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage….

“If another state or foreign jurisdiction issues a license for persons to marry, which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.”

But in their seven-count lawsuit, the four gay couples - who all married before moving to Tennessee - claim that the amendment and sections of the Tennessee Code violate their due process and equal protection rights, in addition to their “right to travel” found in the privileges and immunities clause of the U.S. Constitution. (See Tanco et al v. TN.pdf)

In June, when the U.S. Supreme Court overturned the federal Defense of Marriage Act (DOMA) , it did not rule on the constitutionality of state laws that refuse to recognize same-sex marriages performed in other states. (See US v. Windsor.pdf)

The four gay couples, who all moved to Tennessee knowing that their marriages would not be legally recognized there, want the federal government to overturn a constitutional amendment approved by four-fifths of the state’s voters, claiming it has “no rational basis.”

“Tennessee’s categorical refusal to recognize the valid out-of-state marriages of same-sex couples has no reasonable or rational basis or justification and violates multiple guarantees of the Constitution of the United States,” the lawsuit, which was filed Oct. 21 in U.S. District Court for the Middle District of Tennessee, argued.

“The challenged provisions single out the marriages of same-sex couples and exempt them from Tennessee’s longstanding rule that ‘a marriage valid where celebrated is valid everywhere,’” the complaint said.

Same-sex couples are “being denied the basic rights that are afforded by marriage – rights that were available to them in the states in which they entered into valid legal marriages, but are denied them now that they have relocated to Tennessee,” the lawsuit added.

“These couples are married, and it serves no purpose for the law to ignore their marriages and treat them as legal strangers to one another,” Shannon Minter, legal director for the National Center for Lesbian Rights, which is helping to represent the gay couples, said in a statement. “These laws are causing serious harm to families currently living in Tennessee, while helping no one.”

On Wednesday, Illinois became the 16th state to legalize same-sex marriage. Gay activists have been flocking to federal court to challenge laws in other states besides Tennessee, including Kentucky and Virginia, that do not recognize such unions.

“It’s raining lawsuits,” one lawyer told NBC News in August, after dissenting U.S. Supreme Court Justice Antonin Scalia pointed out  that “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

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