53 GOP legislators want to intervene in same-sex divorce

Fifty-three Republican state legislators have teamed with a Christian conservative group in trying to become involved in the pending divorce of two Knoxville women who are arguing over child custody.

The Family Action Council of Tennessee (FACT) announced Friday that its legal arm, known as the Constitutional Government Defense Fund, is representing the legislators in filing a motion to intervene in the divorce case of Sabrina Renae Witt vs. Erica Christine Witt.

The motion contends the legislators’ “unique and substantial interest in the legislative power and process will be impeded, impaired, and/or nullified” if courts interpret a state law “to apply to any persons other than a man and woman joined together as ‘husband’ and ‘wife.”

Knox County Circuit Court Judge Greg McMillan ruled in June that Erica Witt has no legal rights under Tennessee law to involvement with a daughter born to Sabrina Witt through artificial insemination, as reported by the News Sentinel at the time. The couple were legally married at Washington, D.C., in April of 2014, when same-sex marriage was prohibited in Tennessee. There is still no state law on the books authorizing same-sex marriages, but they were validated by a U.S. Supreme Court ruling last year.

The motion appears basically to endorse the position taken by McMillan in his ruling. The judge decided – as argued by Erica Witt’s attorney – that the relevant Tennessee statute dealing with parenting rights in cases of artificial insemination speaks only to “husbands” of the birth mother and does not cover the mother’s same-sex spouse.

Thus, Sabrina Witt was deemed to have no rights to decision-making or visitation with the child and no obligation to pay child support. Erica Witt’s attorney argued that, under the U.S. Supreme Court ruling, the state law should be interpreted to apply to women spouses of the birth mother artificially-inseminated child as well as “husbands.”

McMillian authorized an appeal, putting the divorce action on hold pending a Court of Appeals decision on whether to hear the issue.

“Given the novelty of this issue, the court thinks it appropriate to see if the appellate courts want to address this,” the judge said.

In a news release, David Fowler, a lawyer who is executive director of FACT and a former Republican state senator, praised the 53 legislators and declared “they are defending the will of the people.”

“They understand the importance of this case constitutionally. This is not a case involving the policy that should be applicable in situations such as this. Rather, this case involves a very important constitutional question— Does the U.S. Supreme Court’s Obergefell decision authorize judges to determine for state legislative bodies what policies it must have relative to custody issues in divorce proceedings?

“If it does, then matters of family law, which have historically been within the constitutional powers of the states to determine, will have essentially been judicially taken from the states and placed in the hands of federal judges,” said Fowler, who filed the motion to intervene.

Legislators signing the document included 15 Republican senators and 38 Republican representatives. House Speaker Beth Harwell and Senate Speaker Ron Ramsey were not among them.

Those signing the motion to intervene in the order listed on the document:

Reps. Bill Dunn of Knoxville, Glen Casada of Franklin, Mike Carter of Ooltewah, David Alexander of Winchester, Harry Brooks of Knoxville, Kevin Brooks of Cleveland, Sheila Butt of Columbia, David Byrd of Waynesboro, Jeremy Faison of Cosby, Barry Doss of Leoma, Tilman Goins of Morristown, Curtis Halford of Dyer, David Hawk of Greeneville; Matthew Hill of Jonesborough; Timothy Hill of Blountville, Andy Holt of Dresden, Dan Howell of Georgetown, Bud Hulsey of Kingsport, Kelly Keisling of Byrdstown,

Sabi Kumar of Springfield; William Lamberth of Portland, Mary Littleton of Dickson, Ron Lollar of Bartlet, Pat Marsh of Shelbyville, Judd Matheny of Tullahoma, Jimmy Matlock of Lenoir City, Debra Moody of Covington, John Ragan of Oak Ridge, Jay Reedy of Erin, Courtney Rogers of Goodlettsville, Cameron Sexton of Crossville, Jerry Sexton of Bean Station, Mike Sparks of Smyrna, Terri Lynn Weaver of Lancaster, Dawn White of Murfreesboro, Ryan Williams of Cookeville, Tim Wirgau of Buchannan and Jason Zachary of Knoxville.

Sens. Mike Bell of Riceville, Rusty Crowe of Johnson City, Mae Beavers of Mount Juliet, Janice Bowling of Tullahoma, Mark Green of Clarksville, Todd Gardenhire of Chattanooga, Dolores Gresham of Somerville, Joey Hensley of Hohenwald, Ferrell Haile of Gallatin, Bill Ketron of Murfreesboro, Mark Norris of Collierville, Kerry Roberts of Springfield, Steve Southerland of Morristown, Jim Tracy of Shelbyville and Bo Watson of Hixson.

Fowler, acting as lawyer for FACT and its litigation arm, has filed two other lawsuits that seek to invalidate same-sex marriages in Tennessee – one in Williamson County and the other in Bradley County. A judge has dismissed the Williamson County lawsuit, declaring FACT had no legal standing to bring such a case—though denouncing the U.S. Supreme Court decision in doing so. A decision in the Bradley County case is still pending.

Note: A copy of the motion to intervene is HERE.

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