With the overwhelming series of victories in the courts marriage equality has seen in the past year, it is hard not to feel a sense of growing optimism, even in the South. Here in Tennessee, we may be on the verge of a monumental shift, as the case of Tanco v. Haslam reaches a crucial stage in the federal courts.
The case was filed on October 21, 2013 by the National Center for Lesbian Rights (NCLR) on behalf of four couples (one has since dropped from the case). Each couple had been legally married in a state that allowed such marriages and subsequently moved to Tennessee, where the state constitution forbids the state from recognizing these legally valid marriages. Asked about how the couples were chosen, Maureen Holland, a Memphis attorney on the case, reflected, “in any case you try to find individuals who showcase the human perspective and the issues. If you look at our complaint we have women with a baby on the way, in Nashville we have a couple from California with adopted children who have family who want their family recognized, and in Memphis we have a military couple – a broad spectrum across same sex marriage.”
One characteristic that the three couples share, besides being same-sex couples being denied their marriage rights in Tennessee, is that they are not Tennessee couples who sought out-of-state marriages. Each of them enjoyed legal marriage rights in their home states and were brought to Tennessee. Dr. Valeria Tanco and Dr. Sophy Jesty transferred from New York to the Knoxville area for work. Matthew Mansell, and husband John Espejo, transferred to Franklin from San Francisco. Matthew’s law firm relocated his division to Tennessee, and if he had chosen to remain in California, he would have lost his job in a very uncertain job market. Ijpe deKoe and Thom Kostura found their way to Memphis via the military, which limited their choices.
The NCLR’s Legal Director, Shannon Minter, describes the problematic state of affairs created by state constitutional bans on respecting legal same-sex marriages: “Married couples should be able to travel and to live in any state knowing that their family is protected. Tennessee’s current law hurts same-sex couples and their children without helping anyone.”
The complaint as filed highlights the heavy burden Tennessee law places on same-sex couples, without “any reasonable or rational basis or justification,” including the deprivation of basic family rights, of parental protections, and of “a dignity and status of immense import,” which language reflects the Supreme Court’s Windsor decision.
As the case has progressed through the federal court, it has taken an unusual and promising turn: on March 20, 2014, U.S. District Court Judge Aleta Trauger ordered that, while the case proceeds, the State of Tennessee must recognize the legal status of the three couples remaining in the case. In making this decision, she reflected that the harms to the couple of continued deprivation of their rights outweighed any harms that might otherwise come to the state. This injunction, however, applied only to the couples in the case; a wider ruling will come only when the judge decides the merits of the case.
Maureen Holland explains that, in order to get such “a preliminary injunction granting immediate relief … you have to prove you are likely to win the case and that there is irreparable harm in forcing the couples to wait.” Trauger refused the State’s request for a stay of her injunction, and Tennessee was forced to appeal to the 6th Circuit Court of Appeals, which did put a stay on Judge Trauger’s temporary injunction while they considered the merits of her order. “However, though the court put a temporary hold on the recognition of these three marriages until a panel could be convened,” Holland explained, “they took a rare step of requesting that that panel should be convened immediately.” She is hopeful that within 30 to 60 days of briefings being filed, the panel could rule on the stay, and thus the temporary recognition of the three couples.
While the case itself may yet have a long road, a ruling on the temporary injunction by the Court of Appeals would send a strong signal about the likely trajectory of the case, just as Judge Trauger’s ruling already has.
But in the meantime, the status of three families, and in the longer term all same-sex families in the state, remains uncertain. This uncertainty is especially poignant in the case of the Knoxville family, Dr. Valeria Tanco and Dr. Sophy Jesty, whose daughter, Emilia Maria, was born while the temporary injunction was in effect. While her official birth certificate lists both of her mothers as birth parents, the status of that document is now in question, and may not be finally settled for a long time yet.
Val and Sophy, ironically, decided to join the case just before they realized they were pregnant. While the importance of the case had motivated them to join, Sophy says finding out that they had a baby on the way “really crystallized the issue for us because we realized wouldn’t have had any parental rights. And at this present moment I don’t have parental rights. I’d like to be recognized as a wife, but more importantly I want to be recognized as a parent. If the moment came when I needed to claim my parental rights but couldn’t, it would be unimaginably tragic!”
For Val, these concerns were compounded by additional worries: her pregnancy wasn’t a “by the books” case. She reflects that, “as the due date came closer, medical issues put a lot of stress over me and Sophy. If anything had happened … well, it became clear how important it was for her to have guaranteed rights over not only the baby but over my medical decisions. No one in the world knows me like she does, but she wouldn’t have been able to make those decisions for me without a lot of legal wrangling.”
Matthew Mansell and Johno Espejo share Val and Sophy’s concerns. “If I were to die or be incapacitated, my husband would not have any legal rights to make decisions for me, as would a husband in a heterosexual couple,” Matthew reflects. “In California, those rights were mine automatically. Here if I get sick and Johno doesn’t have the documents on him, my mom, not my husband, is my next of kin. If my sister were to get sick, her husband wouldn’t have to produce a document. How is that fair?” The couple has two children, and here they have one advantage: they are both the legal parents of their children, whom they adopted together in California. Nevertheless, “we have to make sure we have all their adoption papers with us when we travel showing we are both legal parents in the co-adoption. As gay men traveling with our children, we’re subject to extra scrutiny.”
Ijpe deKoe and Thom Kostura, like their co-plaintiffs, feel the lack of protection their legal New York marriage offers them. As a Sergeant First Class, Ipje reflects favorably on the federal protections and benefits the couple now enjoys: “we have a favorable thing at that level. Bu when it comes to state things, like guaranteed hospital visitations, or property ownership and survivor benefits? We had those rights in New York, but now we’re in Tennessee. If we’re going to live in Tennessee for a long time, is the state going to take care of us? Is it going to protect us like it does our straight neighbors?”
While very “little immediate relief” is likely for all Tennessee same sex couples any time soon, Thom reflects that, “our marriage was recognized for a month and it was a pretty momentous thing for our friends and our community. We all celebrated, and we all hope that the state will treat our marriages the same as they do everyone else.”
Even after the issue of the temporary injunction it is likely that the majority of the state’s LGBT couples will have to wait a while, feeling the same kinds of frustrations Matthew Mansell, one of the Nashville area plaintiffs, voiced: “We’ve been committed for over 19 years! We’re part of the same country, we’re upstanding citizens, we pay taxes! Shouldn’t I have the same benefits and privileges as anyone else?”
Indeed, New York and California are part of the same country as Tennessee, and that would seem to be one of Judge Trauger’s main reasons for confidence that, ultimately, the side of justice will prevail throughout the land: “all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.”