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One of Russell E. Simmons Jr.’s final decisions as circuit court judge could be a landmark one. Simmons, who is retiring on Aug. 31, has been asked to rule on the constitutionality of the state’s marriage laws.
The issue landed in his court in March when Frederick Michael Borman filed for divorce from Larry Kevin Pyles-Borman. The two men were married in Iowa, but they were residents of Roane County.
Tennessee doesn’t recognize same sex marriage.
Borman’s attorney, Mark Foster of Rockwood, contends the state laws on marriage are unconstitutional under the Equal Protection Clause and the Full Faith and Credit Clause of the United States Constitution.
“A marriage is not like a fishing license, where you’re married in Iowa and you only get to stay married while you’re in Iowa like you only get to fish in Iowa on an Iowa fishing license,” he said. “When you get married, you’re going to always be married until you get divorced. Under the Full Faith and Credit Clause, states of the United States are required to give Full Faith and Credit to acts of other states.”
The Tennessee Attorney General’s Office is defending the constitutionality of the state laws.
Simmons heard arguments on Friday from Foster and Assistant Attorney General Kathryn A. Baker.
“Because Tennessee’s marriage laws represent a legitimate public policy determination that does not violate equal protection, they are fully constitutional,” she said.
Simmons didn’t make a ruling on Friday. He plans to do so at a later date.
“Due to the importance, I’ll take this motion under advisement and render a written opinion on it,” he said.
Borman didn’t attend the hearing.
“He’s simply asking that this court recognize that he’s validly married in Iowa to grant him a divorce,” Foster told the judge.
Baker said Tennessee does not have to recognize Borman’s Iowa marriage.
“The United States Supreme Court and this state’s Court of Appeals have previously held that the Full Faith and Credit Clause does not require a state to apply another state’s law in violation of its own legitimate public policy,” Baker said. “Tennessee’s marriage laws represent Tennessee’s legitimate public policy and are fully constitutional.”
Baker also said there is no fundamental right to same sex marriage.
“All previous Supreme Court cases dealing with the fundamental right to marry involved opposite sex couples,” she said, “and furthermore, plaintiff (Borman) cannot escape the history and meaning of the right to marry, which has always been tied to the procreative purpose between a man and a woman.”
Procreation was a big part of Baker’s argument.
“Same sex couples, as opposed to opposite sex couples, cannot naturally or accidentally procreate,” she said. “Procreation provides a rational basis for the law. There’s nothing irrational about limiting the institution of marriage for the purpose for which it was created by embracing this traditional definition.”
Foster contended the procreation argument doesn’t make sense because heterosexual couples who can’t have children are allowed to marry in Tennessee.
“We allow sterile people to get married,” he said. “We allow elderly people to get married.”
Foster also challenged the rationality of the procreation argument.
“The state says, well there must be some rational basis for this – it must be this procreation thing,” he said. “Justice (Antonin) Scalia said that’s not a rational basis. I think every court that has addressed it has said that’s not a rational basis.”