Cleaning Up the Supreme Court’s Obergefell Mess

When the U.S. Supreme Court in the Obergefell case decided it could redefine marriage for all the states, it created a mess. Fixing it will take an assist from the states. A decision this week by the same state Supreme Court that first gave us same-sex “marriage” demonstrates the problem. Perhaps Tennessee can help bring about the fix.

In 2003, the Supreme Court of Massachusetts said that the state constitution required same-sex “marriage.” But the state’s Legislature did not revise all the statutes governing family law to reflect this redefinition of marriage. My guess is that no state has changed all its family laws as a result of the U.S. Supreme Court’s Obergefell decision. Tennessee sure hasn’t. And that is what is creating the current mess.

This week the Massachusetts Supreme Court said that a woman was the legal parent of a child her female partner had by artificial insemination. Note: they were not married. The lawyer for the woman not related to the child cited two laws to give herself the legal status of parent (incidentally, the lawyer is Mary Bonauto, who argued for the same-sex couples in Obergefell).

First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus,meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?

Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!

But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”

Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commentedon the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy . . . the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”

In other words, she is saying that the U.S. Supreme Court has put the Tennessee courts (and all state courts, really) in the position of having to rewrite all of their state’s family law under the guise of constitutional “interpretation.” However, if they don’t, if they can resist the judicial activism we saw in Massachusetts this week, then perhaps the U.S. Supreme Court, on appeal from cases like the one in Tennessee, will realize it’s going to have to rewrite all the family law in every state and that doing so will be going too far, destroying the Court’s last vestige of legitimacy.

Hopefully, if confronted with situations like these and the contortions in legal reasoning they will have to engage in to reinterpret every state’s family law, the Supreme Court will realize why our Founding Fathers left family law up to each state and will reverse Obergefell.

For that to happen, some state courts are going to have to force the issue back to the U.S. Supreme Court by refusing to do their dirty work for them, and legislators are going to have to resist the temptation to change the wording in our statutes. Legislators need to leave our laws alone and, looking our state judges in the eye, dare them to reinterpret the plain language of statutes they have passed.

The process starts in Tennessee on October 21st when a Knoxville trial court will decide whether the word “husband” in Tennessee’s insemination statute includes a “lesbian spouse.” Stay tuned. The road to returning marriage back to the states may run through Tennessee.