NASHVILLE – Proponents of a bill establishing common law marriages in Tennessee limited to one man and one woman have amended the measure to specify it excludes minors amid charges the original language would have allowed marriages between statutory rapists and children they have abused.
The legislation, which seeks to create a legal alternative to marriage, has generated national attention in part because it would create a new legal contract that excludes same-sex couples.
The original bill contained no age requirement for couples to qualify.
“It’s my position the bill never would have allowed minors to get married … but I can see and understand why that might have been misunderstood,” Rep. Tom Leatherwood, R-Arlington, the House sponsor of House Bill 233, told House Civil Justice Committee members Wednesday.
“With this amendment, it would just explicitly state that parties have had to attain the age of majority, which is defined in Tennessee Code as 18 and older,” he said. “All this does is establish another pathway in Tennessee law that addresses concerns of many pastors and parishioners over their deeply held convictions that marriage is between a man and a woman.”
The amended bill states a common law marriage may be applied for at the age of majority, which is 18 in Tennessee. It requires a $10 filing fee to register the common law marriage with county clerks.
One of the bill’s supporters is attorney David Fowler, a former Signal Mountain state senator and president of the socially conservative Family Action Council of Tennessee. Fowler has railed against the U.S. Supreme Court’s landmark 2015 Obergefell v. Hodges ruling.
In that case, justices held that marriage is a fundamental right and, as such, available to same-sex couples. It invalidated Tennessee’s 2006 state constitutional amendment banning same-sex unions.
Fowler later pressed Tennessee’s 95 clerks not to issue marriage licenses to same-sex couples. Some agreed not to.
Leatherwood’s bill did not move out of the House committee as the panel ran out of its allotted time.
The Senate version is scheduled for a floor vote on Thursday.
During Wednesday’s House panel meeting, Leatherwood ran into a barrage of questions from Rep. Johnny Garrett, a Nashville Republican and attorney.
Garrett began by telling Leatherwood his concerns are about the consequences of the bill in multiple areas but not Leatherwood’s intent in bringing it.
“There are going to be actual consequences of this legislation,” Garrett said, citing another Republican’s concerns that the legislation doesn’t require the marriage contract to be filed as a matter of legal record.
“It’s not required to be filed with the county clerk,” Garrett noted.
He questioned whether spouses may wind up being denied benefits and if the bill might allow bigamy.
Leatherwood disagreed.
“I think most concerns can be boiled down to this not being recognized by the state,” he said. “I would disagree with that. If we pass this, it won’t be common law … it’ll be statutory law.”
Challenges ahead
During Senate Judiciary Committee testimony earlier this month, bill sponsor Sen. Janice Bowling, R-Tullahoma, said it’s a simple bill.
“It just declares marriage is not a government construct,” Bowling said.
Fowler was at that hearing as well, arguing in favor of the legislation, saying recognizing a common law marriage in statute should withstand legal challenge.
“[Obergefell v. Hodges] did not discuss this other understanding of marriage,” he said.
Others testifying included Pastor Paul Becker of Concordia Lutheran Church in Kingsport. Becker said he does not perform formal marriage ceremonies now.
“I cannot teach and preach a biblical view of marriage … then endorse policy redefining marriage which violates those of nature and nature’s God,” Becker said.
The bill, he added, gives recognition to biblical marriage and gives protection for that.
Also testifying was Nashville attorney Abby Rubenfeld, one of the attorneys involved in challenging provisions in Tennessee and elsewhere that banned same-sex marriages.
Because it creates two separate paths to marriage, Rubenfeld said, the bill, should it become law, will be “blatantly unconstitutional.”
“From a legal perspective this bill as passed is going to be challenged,” she told Senate Judiciary Committee Chairman Mike Bell, R-Riceville, and other panel members.
Rubenfeld also said her firm collected $2 million from the state of Tennessee in its challenge of the state constitution’s ban, which was overturned in the Obergefell ruling.
Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.