AG: In TN, ‘men’ includes ‘women’ so courts may say ‘husband’ does, too

A new state attorney general opinion says a House-passed bill declaring courts must use the “natural and ordinary meaning” of undefined words in interpreting Tennessee statutes may not work when it comes to words such as “husband” and “wife,” according to a new attorney general’s opinion.

The bill in question appears to conflict with existing state law on gender-specific words and could also be at odds with the U.S. Supreme Court’s gay marriage ruling, the opinion says. The bill passed the House 70-23 on March 16 and is awaiting a Senate floor vote.

Excerpt from the opinion (the whole thing is HERE):

Question 2: If a Tennessee court construed words such as “husband,” “wife,” “father,” or “mother” by their ordinary meaning as required by Senate Bill 1085/House Bill 1111 if it were to become law, would that construction be counter to the holding of the United States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015)?

Opinion 2: Statutes that are related to marriage or to the terms, conditions, benefits, or obligations of marriage could, in some instances, be in conflict with the holding in Obergefell if gender-specific words in those statutes were construed according to the proposed legislation. But not every statute that has gender-specific terms would necessarily conflict with Obergefell if it were construed according to the proposed legislation.

We note, however, that if the proposed legislation were to become law, it may not necessarily result in a judicial construction of statutes that preserves the literal meaning of gender-specific words. The Tennessee Legislature has already expressed its intent that gender-specific words are to be construed as gender-inclusive when they appear in the Tennessee Code. The proposed legislation could, in some instances, be in direct conflict with Tenn. Code Ann. § 1-3-104(b) which instructs that “[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” Any conflict between this existing statute and the proposed legislation would be resolved to allow the specific to control the more general statute. Thus, in construing certain statutes with gender-limiting words, a court would likely apply the very specific gender-inclusive requirements of Tenn. Code Ann. § 1-3-104(b) rather than the very general “ordinary meaning” requirements of the proposed legislation.

Note: The bill, and a similar measure, were inspired by a Knoxville judge’s ruling in a child custody dispute between divorcing lesbians who were legally married in another state. The ruling said only the biological mother of the child, born after artificial insemination, has any legal rights to custody. Previous post HERE.