Same-Sex Divorce in Tennessee Revisited

About a week ago, I posted about whether same-sex couples can get a divorce in Tennessee.  I wrote that they could not, and I still have that opinion, based on  Tennessee’s current constitution and statutes.  However, it appears this issue may come to a head in Texas, where a district judge ruled that a gay couple could be divorced, even though Texas will not recognize a marriage between two people of the same sex.

The reason the case in Texas interests me, is because the judge in Texas granted the divorce after finding the Texas law violates the equal protection clause of the federal constitution.

The provision in the Texas constitution that prohibits same-sex marriage is similar (in effect) to the amendment of the Tennessee constitution which limits marriage to one man and one woman.

The decision by the district judge in Texas is not binding on Tennessee, but if a higher court (particularly the U.S. Supreme Court) were to find the law in Texas unconstitutional, it would mean the similar law in Tennessee (as well as many other states) would become ineffective.

The questions isn’t whether or not the law is discriminatory.  There’s no doubt the government is discriminating based on sexual orientation.  The ultimate question that will have to be answered is whether the government’s purpose in reserving marriage to one man and one woman is important enough to justify discriminating against gay and lesbian couples.

This battle is just getting warmed up, and it’s only a matter of time before this issue lands before the U.S. Supreme court.  In fact, the Texas case could be headed that way.  The judge made her ruling on Thursday, and the Attorney General filed a notice of appeal on Friday.

Can Same-Sex Couples Get a Divorce in Tennessee?

The Associated Press reports that an Indiana court has refused to grant a divorce to a same-sex married couple.  In this case, the couple had married in Canada and eventually moved to South Bend, Indiana, where they are now seeking a divorce.  The Indiana court is refusing to hear the case because the marriage is illegal under Indiana law.

What about Tennessee, could a same-sex married couple be divorced here?

Divorce is a remedy that may be awarded by a court.  Tennessee uses a fault-based system for dissolving a marriage.  This means that in order to be awarded a divorce, you must prove to the court that either your spouse has acted in a way that gives you adequate grounds for divorce, or that irreconcilable differences have arisen between the parties.

Either way, the award of a divorce is only appropriate if a marriage had actually existed between the parties.  The question is then, would this couple’s marriage be valid in Tennessee?  After a much publicized battle and vote, our state constitution was amended to read:

The historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

It may seem unfair, but since Tennessee cannot recognize a same-sex marriage, the courts cannot award a judgment of divorce to these couples.  This is exactly the same situation as in Indiana.