Tennessee Judge Ignores Supreme Court, Rules Parental Rights Apply Only To ‘Husbands’


Last June, the Supreme Court of the United States issued its historic Obergefell ruling, bringing marriage equality to every part of the nation. But on Friday, a Tennessee judge decided that the protections need not apply in his courtroom, refusing to recognize the parental rights of a mother in a same-sex divorce case because she is not the biological parent.

Though Justice Anthony Kennedy’s majority opinion held that no state may discriminate against same-sex couples in the licensing and recognition of marriage — and the rights and responsibilities that accompany it — the case included a specific challenge to Tennessee’s same-sex marriage ban.

“Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry,” Kennedy wrote. “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

Knox County Judge Gregory S. McMillan

Knox County Judge Gregory S. McMillan CREDIT: KNOX COUNTY COURTS

But Knox County Fourth Circuit Judge Gregory S. McMillan ignored this, ruling that because one of two mothers “has no biological relationship with this child,” she therefore “has no contractual relationship with this child.”

Erica Witt and Sabrina Witt legally married in 2014 and Sabrina gave birth to a daughter the following year, through artificial insemination from an anonymous sperm donor. In February, Sabrina filed for divorce and now seeks to deny Erica parental rights. Sabrian’s attorney argued on Friday that because a 1977 Tennessee law guaranteeing parental rights in artificial insemination cases specifies a “married woman’s husband,” it does not apply to Erica. “That terminology is not interchangeable,” he claimed.

McMillan, who made headlines soon after his election to the bench in 2014 for permitting a Knoxville baby to be baptized against her mother’s will — even though the mother had full custody of the child, sided with Sabrina Witt.

“I believe as a trial court I am not to plow new ground, but to apply precedent and the law,” McMillan said, refusing to enact “social policy.” He put the divorce on hold to allow Erica Witt time to appeal.

Monday marks the one-year anniversary of the Obergefell decision. Though its legislature rejected an unconstitutional bill in January that would have attempted to simply “void” any court ruling requiring recognition of same-sex marriages, Tennessee is one of several states that has taken no action to update its laws to comply with the Supreme Court’s mandate.


Reprinted with permission from Think Progress, a branch of The Center for American Progress