Tennessee is trying to find a loophole to ban same-sex marriage even if it legalizes child brides

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A new bill in Tennessee is looking to amend the laws in the state to make the state’s definition of common-law marriage as one between “one man” and “one woman”.

Tennessee’s HB233 will “defend any action against a local official or any political subdivision of the state for adherence to the duties, responsibilities, or limitations imposed on such official or political subdivision pursuant to the issuance or failure to issue a marriage license.” It would also amend Title 16 of the Code of Tennessee that says courts shall administer right and justice according to law to include an exception for common-law marriages.

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HB233 would add this to Title 16-10-101 of the Code of Tennessee: “However, in cases involving the definition of common law marriage, where the people of Tennessee have spoken on the definition of marriage by referendum interpreting the Constitution of Tennessee, the circuit court’s jurisdiction shall be limited to those principles of common law consistent with the import of those votes by the people.”

This provision would allow Tennessee to provide a legal loophole to respecting and accepting gay marriages in the Volunteer State, essentially voiding the Obergefell v Hodges ruling that determined marriage equality as the law of the land.

Abby Rubenfeld, co-counsel for Tennessee plaintiffs in the Tanco v Haslam case also argued alongside Obergefell in 2015, said this bill would essentially give a “special license” to straight couples which is unconstitutional.

The bill’s sponsor, state Rep. Tom Leatherwood (R), stated that the reason it is being considered is to add a new marriage option for Tennesseans, to “give an alternative option for those pastors and other individuals who have a conscientious objection to the current pathway to marriage.” 

Opponents of HB233 are voicing their concerns over this bill. 

Along with its discrimination against LGBTQ couples, opponents of this bill are voicing their concerns it would eliminate an age requirement, and in some instances, open the door for a coverup of child sex abuse. Bill HB233 has no age requirements with regards to common-law marriages listed in the bill, opening the door for child marriages. This is something that was acknowledged by Leatherwood in committee hearings. 

“There is not an explicit age limit,” Leatherwood said.

State Rep. Mike Stewart (D), who sits on the same subcommittee, said he doesn’t understand the motivation. “I don’t think any normal person thinks we shouldn’t have an age requirement for marriage.”

Stewart added, “It should not be there as it’s basically a ‘get out of jail free’ card for people who are basically committing statutory rape — I mean it’s completely ridiculous, so that’s another reason why this terrible bill should be eliminated.”

HB233 passed out of the House Children & Families Subcommittee, and it has advanced to the House Civil Committee.

This is not the first time Tennessee has thought of a bill to restrict marriage equality in the Volunteer State. In 2016 and 2019, Tennessee Republicans introduced the Tennessee Natural Marriage Defense Act in retaliation to Obergefell. That bill, which could have jeopardized the Volunteer State’s $9.4 billion in federal funding, would have prohibited government officials from facilitating same-sex marriages, and stated that these officials cannot be arrested for disavowing court orders that recognize such unions. The bill did not pass.

This is also not Tennessee’s first bill involving child marriage either.

A bill passed in 2018 prohibited anyone under the age of 17 from marrying in Tennessee and anyone under 18 from marrying someone who is four or more years older. However, Republicans killed a bill that would have banned marriages where one of the parties is under 18 years old.

Nearly 300,000 children were married in the United States between the years 2000-2018. According to a study of child marriage in the U.S. by Unchained at Last published in the Journal of Adolescent Health, Tennessee was 13th in child marriages per capita.  Unchained At Last does state that child marriages have decreased during most recent history, but they stress that it won’t get to zero without legislative intervention.

Child marriage has a list of negative consequences correlated. According to studies, those who marry before 18 tend to have a higher chance of getting divorced and also are more likely to suffer instances of intimate-partner violence. According to a report published by the World Policy Analysis Center in 2015, women married before the age of 18 are three times more likely to have been beaten by their spouse than women married at age 21 or older.

The Sexual Assault Center of Middle Tennessee released the following statement to News 2 WKRN, “The Sexual Assault Center does not believe the age of consent for marriage should be any younger than it already is. It makes children more vulnerable to coercion and manipulation from predators, sexual and other.”

You can see excerpts of the hearings on the bill below.




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