FRANKLIN, Tenn. (September 9, 2016) —Today, the Constitutional Government Defense Fund, an initiative of The Family Action Council of Tennessee, Inc. filed a Motion to Intervene on behalf of fifty-three Tennessee state legislators in a very important case flowing from the U.S. Supreme Court’s same-sex marriage decision last year, Obergefell v. Hodges. The case tests the extent to which Obergefell dictates policy results in other areas of family law and transfers those policies to the judicial branch.
The Motion was filed in a divorce proceeding pending in Knoxville involving a marriage between two women. During the marriage, one of the women conceived a child by artificial insemination. The issue involves the custody rights of the woman who has no biological relationship to the child.
The controversy centers on a statute that deems a child born to a “married woman” by means of artificial insemination, with the consent of the “married woman’s husband,” to be the “legitimate child of the husband and wife.”
The two women have asserted that that statute, enacted in 1977, is unconstitutional if it is applied according to the plain meaning of the words used and is not interpreted by the courts to apply to same-sex marriages.
David Fowler, attorney for the legislators, said:
“These legislators are to be commended for taking quick action in the midst of campaigning and preparing for a special session next week. They understand the importance of this case constitutionally. This is not a case involving the policy that should be applicable in situations such as this. Rather, this case involves a very important constitutional question—Does the U.S. Supreme Court’s Obergefell decision authorize judges to determine for state legislative bodies what policies it must have relative to custody issues in divorce proceedings? If it does, then matters of family law, which have historically been within the constitutional powers of the states to determine, will have essentially been judicially taken from the states and placed in the hands of federal judges.”
“I hope their constituents appreciate the fact that they are defending the will of the people, who, through their state constitution, vested the power of determining public policies issues in the legislative branch that is directly accountable to them and for defending our state’s sovereignty from further encroachment as a result of the Supreme Court’s Obergefell decision,” Fowler concluded.
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