Tennessee lawmakers trying to protect minors from child marriage have been thwarted by opponents of marriage equality, who are pressing ahead with a convoluted legal strategy that seeks to overturn the US Supreme Court’s ruling on same sex marriage — but which would at the same time would keep underaged marriage in place.
Opponents of Obergefell v. Hodges, the Supreme Court’s 2015 decision legalizing same sex marriage, convinced conservatives in the Tennessee legislature this week that banning child marriage would interfere with their efforts to overturn the groundbreaking same-sex marriage ruling.
A recent investigation found that Tennessee had the youngest married children in the country, including three 10-year-old girls who had been married to men aged 24-31 and an 11-year-old boy who had been married to a 27-year-old woman. Although the required age to marry in Tennessee is purportedly 18, state law is riddled with loopholes that essentially allow minors of any age to marry.
The way Tennessee law is written, if an applicant for a marriage license is under the age of 18, there must be a three-day waiting period unless both parents or guardians have already approved the application. The law also forbids issuing marriage licenses to anyone under the age of 16.
But a provision in the law empowers judges and mayors to suspend the both the three-day waiting period and the age restriction. Two Democrats in the state legislature set out to close the loopholes and set 18 — without exceptions — as the required age for anyone to obtain a marriage license.
This week, however, House Majority Leader Glen Casada (R) proposed a motion to send the House version of the bill to “summer study” in the House Civil Justice Subcommittee — a place where bills generally die.
Conservatives killed the bill is because the Family Action Council of Tennessee (FACT), the state’s anti-LGBTQ advocacy organization, is suing to overturn marriage equality. Passing legislation protecting children, they argue, would undermine the rather bizarre legal theory underpinning their case.
Here’s the reasoning behind FACT’s lawsuit: Tennessee lawmakers would never have voted to allow same-sex couples to marry. If Obergefell requires the current marriage statute to apply to same-sex couples, that must mean that the entire statute regulating marriage in the state is invalid.
Indeed, this reasoning would mean that every marriage license issued to any couple that has married in Tennessee since June 26, 2015 — or possibly ever — is void. Based on this assumption, FACT also worries that pastors who have solemnized marriages in that time are guilty of violating a different Tennessee statute prohibiting the solemnization of two people not legally eligible to marry — because no one is eligible to marry.
David Fowler, FACT’s president, thinks his reasoning in the suit is so foolproof that it would also have been an effective strategy for circumventing the racial integration of schools, because states could just repeal the public school system entirely.
But his legal theory is based on Tennessee’s marriage law before the Supreme Court handed down Obergefell. That’s why Fowler emailed Casada and convinced him to kill the child marriage bill. If the legislature were to update its marriage laws, it would thereby acknowledge the validity of those marriage laws in a post-Obergefell era. Fowler’s theory that the legislature would never pass a marriage law if it required the recognition of same-sex couples’ marriages would fall apart.
Indeed, Fowler told Rep. Darren Jernigan (D), sponsor of the bill to correct the child marriage loopholes, “Some people think the state should regulate marriage, and I do not.”
Jernigan was floored that his bill was killed. “Basically, what has happened is the Family Action Council wants to continue to let 13-year-olds get married in the state [for] the sake of their court case against same-sex couples,” he said. “It’s disgraceful. I’m embarrassed for the state of Tennessee, and I can only pray that we bring this back next year and not let them get in the way.” Tennessee lawmakers had previously attempted to nullify the Supreme Court’s marriage equality decision directly, but that legislation failed to advance.
Tennessee isn’t the only state where conservatives have torpedoed attempts to fix child marriage loopholes. Just last week, the Family Foundation of Kentucky convinced lawmakers to pull a similar bill in that state there because it “diminishes parental rights.” Specifically, the group objected to the bill’s provision that would have allowed 17-year-olds to marry without parental consent. A new bill that includes parental consent obligations is now moving forward.
Between 2000 and 2015, at least 207,468 minors were married in the United States.