Edie and Tamar Love have been married four times and are raising four kids together. But in the eyes of the state of Tennessee, the women are still single.
Eighty-one percent of Tennesseans voted in favor of a constitutional ban on same-sex marriage in 2006. In fact, the state is preparing to highlight that ban on August 31st with Traditional Marriage Day, made possible by a resolution passed by the General Assembly in April that declares marriage as “expressed only between a man and a wife.”
But although the Loves’ marriage isn’t legally valid in their home state, the federal government now recognizes their marriage thanks to the June 26th U.S. Supreme Court decision that repealed Section 3 of the Defense of Marriage Act (DOMA).
Because one of the Loves’ four celebrations — a personal ring exchange in Tamar’s bedroom, a commitment ceremony at the National Ornamental Metal Museum, a domestic partnership in Arkansas, and a legal marriage ceremony in Seattle — took place in Washington, a state that honors same-sex marriage, the couple will soon be eligible for a handful of federal benefits.
“It feels nice to have some validation somewhere in the world,” says Tamar, a local teacher. “We have recognition from a whole state, even if it’s not ours.”
But because Tennessee doesn’t recognize their marriage, the Loves (and thousands of other Tennessee gay couples who married in states where it is legal) may not get all of the 1,100 federal protections afforded to heterosexual married couples and gay married couples in states with full marriage equality. Federal agencies are still parsing that out.
The only way Tennessee’s married same-sex couples would be treated equally under federal law would be if the state overturned its marriage ban and legalized gay marriage.
There are a couple of paths to legal gay marriage in Tennessee, but the traditional legislative process looks like a long haul, according to the Tennessee Equality Project’s acting executive director Chris Sanders.
“The court challenges are probably the way it will come in Tennessee. It’s more direct, but it will take time,” Sanders says. “There’s no fast and easy route, but a court challenge has a far greater chance of having an effect than a legislative appeal.”
Death of DOMA
In the landmark case of United States v. Windsor, the U.S. Supreme Court held that restricting the federal interpretation of “marriage” and “spouse” to only heterosexual marriages, as was laid out in Section 3 of DOMA, was unconstitutional.
It all started with Edie Windsor, a New York woman who legally married her wife Thea Spyer in Ontario, Canada, in 2007. Spyer died in 2009 and left her estate to Windsor, who sought to claim the federal tax exemption for surviving spouses.
But the language in DOMA, an act signed into law by President Bill Clinton in 1996, said “spouse” only applied to marriages of a man and woman. The IRS denied her claim and ordered Windsor to pay $363,053 in estate taxes. Windsor filed a lawsuit against the federal government, which eventually worked its way up to the U.S. Supreme Court. The court heard legal arguments this past March, and on June 26th, the court issued a 5-4 decision declaring Section 3 of DOMA to be unconstitutional.
At first glance, it would seem that this means legally married gay couples will now be treated equally in the eyes of the federal government and receive full federal marriage benefits. But not so fast, says Sanders of the Tennessee Equality Project (TEP).
“We’re fielding a lot of questions from people who have married in other states wanting to know what they can do to access their benefits. Most of the federal agencies are still clarifying their regulations,” Sanders says. “Some agencies are basing it on where you got married, and others are basing it on where you live.”
It comes down to “place of celebration” versus “place of domicile.” Agencies that provide marriage benefits based on “place of celebration” only consider where a couple was married. If a same-sex couple is married in one of the 13 states with legal gay marriage, agencies that honor “place of celebration” will provide marriage benefits to gay couples.
For example, U.S. Citizenship and Immigration Services focuses on “place of celebration,” meaning those who marry a foreign-born person of the same sex can now sponsor their partner for a green card. In June, one member of a married male couple in Florida, which does not recognize same-sex marriage, became the first to receive a green card.
Agencies that honor “place of domicile” (where you reside) will not provide federal marriage benefits to married couples who live in the 37 states that don’t honor gay marriage, even if a couple is married in a state that does. That is, unless those agencies, such as the IRS and the Social Security Administration, change their policies. Marriage equality advocates expect some agencies to change those rules but likely not all.
“That’s why we’re not certain yet whether Social Security will work out for those of us in red states. They base it on where you live, but the federal government could change those regulations,” Sanders says.
Just last week, the Pentagon announced that it would be changing its policy to extend gay spouses of service members the same benefits available to straight spouses. That includes military health care, housing allowances, and retirement benefits.
Although not certain yet, the IRS is expected to change its policy to allow same-sex married couples to file jointly in time for the 2013 income tax season. That’s something the Loves are hoping for.
“It will be nice to claim ‘married’ on something,” Tamar says. “On just about everything I fill out, I have to put ‘single.’ But I’m not single. I’m married, and that’s really frustrating.”
The Joys of Marriage
Being able to file taxes jointly excites Diane Thornton and Ginger Leonard too. The Memphis couple has been married since 1990, when they tied the knot in Texas a couple years after they began dating while they were students at Texas Women’s University. Since Texas doesn’t honor same-sex marriage, their marriage there isn’t legally valid.
“We met in 1987. I was living with some roommates in Texas, and I came home from work one evening at 9 p.m. I was hot, tired, and grumpy. But my roommates were having a big ole party,” Leonard says.
“I walked into the kitchen. And Diane was standing there talking to somebody. I turned to one of my roommates, and I said, I will end up with her. It took me about a year.”
The couple has since lived happily ever after. They moved to Memphis, Leonard’s hometown, shortly after college. They have two grown children together. Both women took turns being pregnant with the help of a sperm donor. Leonard gave birth to Max, who is now 20, and Thornton gave birth to William, now 18.
The pair were legally married in Washington, D.C., in May 2010 when they accompanied their son Max there for his high school senior trip.
“Two weeks before we were scheduled to leave, the [marriage] law changed there,” Thornton says. “I asked both boys if they thought mom and I should get married, and both said we should.”
But because of DOMA’s discrimination against married same-sex couples, their D.C. marriage didn’t have any legal benefits right away. Thornton and Leonard are hoping that will change soon.
“For the past three years that we’ve been legally married, Ginger has still been seen by the federal government as supporting one person, but she’s been supporting four,” says Thornton, who is retired. “The federal government thinks she just has income supporting her and Max, and William and I are invisible.”
The couple is also hoping the Social Security Administration will decide to honor their marriage.
“As it stands now, my kids are too old to receive my Social Security benefit if something happens to me,” Leonard says. “So it goes away. But once they decide on how to look at that benefit, it may go to Diane.”
“And another thing about us getting married: I cannot make a medical decision for her or William unless I have a [power-of-attorney] paper in hand,” Leonard adds.
Although the couple is awaiting the federal government’s decision on which marriage benefits they will receive, Leonard admits, when the pair married in 2010, she didn’t expect things to change so fast.
“Ginger said this is not going to do any good. Why am I dropping $350 on this?” Thornton says, describing the day they paid for their marriage license in D.C. “She thought this would never happen in our lifetime.”
Marriage Inequality
On August 7th, just before lunch, Chris Snow and his husband Aaron Thompson marched into the Shelby County Clerk’s office downtown and asked for a marriage license. They emerged from the office a few seconds later to face a gaggle of reporters gathered outside the door.
“They said they don’t do them yet,” Thompson told them.
Snow and Thompson, along with another Memphis couple, Amy Barton and her fiancée Lyndsay Gray, took part in the action at the urging of TEP. The couples knew they’d be denied a license since Tennessee doesn’t honor same-sex marriage. But the action, one of many happening in clerks’ offices in non-marriage states across the country, was a symbolic statement to show the demand for marriage equality.
Snow and Thompson, who met online 13 years ago, don’t actually need a Tennessee marriage license. They married in Washington, D.C., three years ago.
“A few years into our relationship, states were starting to approve gay marriage, and I jokingly said, on our 10-year anniversary, that’s when we’ll get married,” Snow says.
That joke became serious when the pair made it to 10 years.
“Aaron is a math teacher, and he had a conference in D.C. that he had to go to over the summer. He said, why don’t you come along and we can get married?” Snow says.
They had a modest ceremony with an officiator in their hotel room, but when the hotel staff found out what was going on, they surprised the couple with bottles of Champagne and a platter of chocolate-covered strawberries.
It’s probably a good thing Snow and Thompson didn’t wait for gay marriage to be approved in Tennessee. While marriage-equality advocates expect same-sex marriage to be legal nationwide one day, the path to legalization in Tennessee won’t come easy.
Same-sex marriage is banned by the state Constitution. In order to repeal a constitutional amendment, a member of the state House and Senate would have to introduce a resolution to repeal. That resolution would have to pass two consecutive sessions of the General Assembly. Each session lasts two years.
In the first session the bill is introduced, it would have to pass by a simple majority. In the second session, it would have to pass by two-thirds in both houses.
“There may not be any members of the Senate now who would vote for it, and there would only be a handful of House members,” TEP’s Sanders says. “We have the most right-wing legislature we’ve ever had in Tennessee.”
But if it did make it that far, the issue would then go to a ballot to be voted on by the general public, but the rules are written so that a ballot measure repealing a constitutional amendment can only be introduced in a year that Tennessee is electing a governor.
“That is a considerable climb in the legislature and in the populace,” Sanders says. “We’ve just now gotten to a point where 49 percent of Tennesseans support marriage equality or civil unions, according to a Vanderbilt [University] poll that came out recently.”
That number lumps together those who support civil unions with those who support marriage. That poll, taken in May, shows only 32 percent of Tennesseans support full gay marriage rights.
But all hope isn’t lost, Sanders says. Tennessee’s ban can, and likely will, have to be challenged through the courts.
“Here’s what to watch: There’s a Michigan case in which a couple have brought a legal challenge to that state’s marriage ban in federal district court. Michigan and Tennessee are both in the Sixth Circuit of the U.S. Court of Appeals,” Sanders says. “The federal judge has said that case can proceed. We don’t know what the ruling will be down the road, but I would imagine that if Michigan appeals that at some point, it will be in the Court of Appeals. And that could set a precedent that could eventually have an impact in Tennessee.”
On the same day that the U.S. Supreme Court overturned part of DOMA, it determined in the separate case of Hollingsworth v. Perry that gay marriages could resume in California because those attempting to appeal a lower court’s decision that Prop 8, which banned same-sex marriages in that state, was unconstitutional didn’t have legal standing. Had the Supreme Court ruled Prop 8 unconstitutional, it would have essentially overturned all state bans across the country.
Although that didn’t happen, the potential has given hope to marriage-equality advocates, and state bans are being challenged now across the U.S. Sanders says TEP has a commitment from a Nashville attorney who would like to bring a challenge in this state in the near future.
Same Love
On an unseasonably mild summer day, John Snook and Tim Andrews are playing lifeguard to Tim’s three nieces and a nephew during “Uncle Camp,” an annual weeklong tradition during which the couple baby-sits their relatives’ children.
As the kids (and John and Tim’s dog Mara) are splashing in the pool, the couple, who are not married, discuss their relationship for this story. And then Snook drops a bombshell.
“Do we use the Flyer for our wedding announcement?” Snook wonders aloud.
“I say yes,” Andrews confirms.
“We are going to New York and getting married on April 1st, and then we’re going to Europe for two weeks for our honeymoon. Even though Tennessee doesn’t recognize it, I know we’ll get some federal benefits,” Snook says.
The two purchased an East Memphis home three years ago, and as far as their nieces and nephews are concerned, they’re already Uncle Tim and Uncle John.
But they’re looking forward to being treated as a married couple in the federal government’s eyes. And Snook, who works at FedEx, is hoping that once they are married, his pension can go to Andrews if Snook were to die first.
“FedEx extended same-sex partner benefits in 2012. That included health insurance and some of the discounts we get. But it didn’t include my traditional pension,” Snook says. “That’s because it’s governed by ERISA, a federal pension program. As it stands, if I were to die, my pension wouldn’t go to Tim. Now, hopefully, when we get married, if I die before I retire, he can be entitled to my pension.”
Although full federal marriage benefits aren’t guaranteed, Sanders says couples like Snook and Andrews, who have been in a committed relationship for years, would be best off marrying in an equality state and not waiting for Tennessee to allow same-sex marriage.
“We have no realistic picture of what the timeline for Tennessee will be,” Sanders says.
Whether married in other states or unmarried and living as partners in Tennessee, gay couples say they simply want to be treated as equals. It’s not about special rights, as some same-sex marriage opponents have claimed, but equal rights, according to Aaron Thompson.
“It’s just about being able to do what everybody else does. I’ve never made a big deal of being gay. I’m not trying to rub anything in anyone’s face,” Thompson says. “I’m just thinking in terms of respect and what’s fair. I should be able to do the exact same things [as a heterosexual person] without someone thinking that’s an affront to them. It’s just a matter of feeling like an equal.” ♥
Greg Cravens 