Married lesbians sue Tennessee over spousal definitions

Four married lesbian couples in Tennessee are fighting a new state law they say denies their parental rights.

The couples, each expecting a baby this year, filed a lawsuit last week against a law mandating that undefined words in state statutes be interpreted to have “natural and ordinary” meanings. Tennessee Gov. Bill Haslam signed the measure into law May 5.

Advocates say the simple law mandates words in state legal codes not be extended or changed beyond their natural definition. One of the bill’s sponsors, Republican state Rep. Andrew Farmer, told NBC News the legislation had “nothing to do with same-sex marriage or gender.”

But LGBT activists are calling the law “sneaky,” arguing it “clearly targets LGBTQ Tennesseans” by requiring words like “husband,” “wife,” “mother,” and “father” in state law apply only to opposite-sex couples.

“Make no mistake. The intent of [this bill] is clear,” Jim Obergefell, the primary plaintiff in the 2015 Supreme Court case legalizing same-sex marriage, said in a statement urging Haslam to veto the bill. “This bill is not about protecting the rights of all Tennesseans. Its intent is to harm LGBTQ Tennesseans and their families.” Obergefell said the law conflicts with federal and state laws that require gender-specific words now be interpreted as gender inclusive.

At least one Tennessee judge agrees.

Days before Haslam signed the “natural and ordinary meanings” law, a Knox County judge granted the legal parental rights of a “husband” to Erica Witt, a lesbian woman fighting for parental rights to a child her former wife conceived by artificial insemination.

Under Tennessee law, a “child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.”

During divorce proceedings, attorneys for Erica Witt’s ex-wife, Sabrina Witt, argued the artificial insemination law does not grant Erica Witt any parental rights to the child because she was not the “husband.”

In July 2016, state appeals court Judge Greg McMillan agreed and ruled against Erica Witt.

Three months later, Tennessee Attorney General Herbert Slatery filed a memorandum in the case, disagreeing with McMillan’s ruling.

Slatery stated that, construed literally, the artificial insemination statute runs afoul of the Supreme Court’s Obergefell decision because it only accounts for a male spouse, excluding same-sex couples from marriage on the same “terms and conditions” as opposite-sex couples.

But Slatery offered a simple solution: Just interpret the law to mean “spouse” instead of “husband.”

“The legislature’s use of the words ‘husband’ and ‘wife’ merely reflects the fact that only opposite-sex marriages were recognized in Tennessee when the statute was enacted in 1977. After Obergefell, of course, that is no longer the case,” Slatery wrote.

In early May, McMillan reversed his previous ruling and granted Erica Witt parental rights, including an obligation to pay child support.

But the “natural and ordinary” law threw the whole issue into question again.

The four lesbian couples suing the state say they want the law overturned. They also want a court order clarifying that married same-sex couples and their children should be treated the same as married heterosexual couples and their children, receiving health insurance coverage and social security benefits, granting them equal hospital visitation, and if they divorce, custody rights.

The current struggle—figuring out what to do with marriage-related words—is the result of the fact that “our law has abandoned the natural meaning of marriage,” said David Fowler, president of the Family Action Council of Tennessee. “The problem is that giving a word a meaning contrary to its natural meaning requires us to give a new meaning to all the words associated with that word.”

The attorney for the plaintiffs said a hearing date has not yet been set.