NASHVILLE – A Tennessee bill that seeks to create common law marriages that are limited to one man and one woman was shipped off for summer study Wednesday after the sponsor said the controversial measure, which has generated a wave of criticism from LGBTQ groups and others, needs more work.
“There have been several good suggestions from the subcommittee as well as this committee concerning this bill,” Rep. Tom Leatherwood, R-Arlington, the bill’s sponsor, told House Civil Justice Committee members. “And those suggestions have resulted in amendments, and I think they have resulted in a strong bill.”
“However,” Leatherwood added, “there is still a lot of sincere concerns about this bill as well as a lot of misinformation about this bill. And as a result of that, I think it would be good for us to take just a more considered approach to looking at this bill in summer study.”
The measure, House Bill 233, has been promoted among others by Family Action Council of Tennessee President David Fowler, a former state senator from Signal Mountain. A religious and social conservative who has pressed a number of bills targeting the LGBTQ community, Fowler has pursued various legal strategies and bills in a so-far unsuccessful effort to undermine the U.S. Supreme Court’s landmark 2015 decision in Obergefell v. Hodges, which legalized same-sex marriages.
Critics have charged the bill as drafted would legalize child marriages because it doesn’t state that those entering into common law marriage be at least 18 years old. Last week, Leatherwood argued that’s not the case but offered an amendment to ensure a man and woman have to be at least age 18.
That still didn’t resolve concerns voiced by Rep. Johnny Garrett, a Goodlettsville Republican and attorney who raised objections about the bill, which among other things would not have required a common-law marriage to be registered with local governments.
That could create problems in areas ranging from property ownership and bank loans to a spouse being denied benefits, Garrett warned.
Leatherwood on Wednesday brought forth an amendment to require a common law marriage be registered with local governments before his request to have the legislation studied over the summer.
“I know I expressed some concerns last week,” Garrett told Leatherwood. “Those concerns are still there, and I think that’s what this process is all about, legislators come together and figure out the best pathway forward. And then, if there is a pathway forward for this particular legislation, I do think it needs to be studied to kind of figure out what the ins and outs of concerns and issues are. So I really do appreciate you working very hard for this legislation to get it in the best posture that we can.”
Nashville attorney Abby Rubenfeld, one of the attorneys involved in the Obergefell case challenging state laws in Tennessee same-sex marriages, warned Senate Judiciary Committee members earlier this month that if the common law marriage bill is passed, it will be “blatantly unconstitutional.”
That’s because it creates two separate paths to marriage, Rubenfeld said.
“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.
The bill moved through the Senate Judiciary Committee, but final Senate floor action was delayed pending the fate of the House companion bill.
Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.