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Why Conservatives Are Picking Sides in a Lesbian Child Custody Battle

A contentious divorce in Tennessee has become a political battleground after conservatives filed a motion supporting the denial of custody rights to one of the mothers.

Erica Witt reacts to the ruling of Judge Gregory McMillan in her child custody case. Photo by Amy Smotherman Burgess/Knoxville News Sentinel via ZUMA Wire

Last year, when the Supreme Court made it legal for same-sex couples to marry nationwide, one might have expected the ruling to end thorny questions about the legal status of their 200,000-plus children. But as recent developments in a Tennessee court case have made clear, the religious right and its Republican enablers are now doing their best to deprive such children of legal parental attachments, giving the lie to decades of pious claims that their paramount interest lay with protecting children.


You'll find the latest example in a September 9 motion to intervene filed in a contentious divorce battle between two women by the Family Action Council of Tennessee (FACT). FACT, which acted on behalf of 53 state legislators, all Republican, said in a statement that the case was about whether Obergefell authorizes judges to determine custody policies in divorce proceedings for individual states.

Which is one way to frame it. Another is that Tennessee law, like that of many states, is tilted against the children of same-sex couples because it only acknowledges the biological mother's parental rights—and Republicans are evidently invested in keeping it that way.

More than 100,000 American same-sex couples are currently raising children. But since children in same-sex-headed households usually have a biological relationship to only one parent, the legal status of the birth mother's spouse varies from state to state, even if they have fully co-parented the child from day one. (The legal situation of two-father families is a separate can of worms.) And in the aftermath of the Supreme Court's 2015 Obergefell decision on same-sex marriage, that status is being tested in a variety of court cases that have emerged in the past year as the next frontier in LGBTQ family law.

One such case is the divorce of Sabrina and Erica Witt. Sabrina, the biological mother of the couple's baby girl, is seeking sole custody, even though the women were legally married at the time the baby was born via assisted reproduction. In June, a Tennessee judge ruled in her favor, saying that Erica "has no biological relationship with this child, has no contractual relationship with this child."


"I believe as a trial court I am not to plow new ground, but to apply precedent and the law," Judge Gregory McMillan added.

The Tennessee law governing parenting in the case of donor insemination dates back to 1977, and is accordingly stacked in favor of heterosexuals. It says that "a child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife." If Erica Witt were a man, she would be considered the child's other legal parent. As with similar laws in numerous other states, Tennessee's parenting law was designed to ensure that children born through donor insemination, which was then growing in popularity, would have legal ties to the person intending to operate as the father. At the time, few outside the lesbian community even considered the prospect of a woman giving birth by donor insemination while sharing her life not with a husband but a wife.

Yet we now live in a world where same-sex parents are commonplace, and where the Supreme Court has ruled that same-sex marriages are constitutionally protected. What, then, is the fate of laws that may conflict with the Obergefell decision?

Mary Bonauto, the lawyer who successfully argued the Obergefell case before the Supreme Court, told VICE there is only one way to interpret the Tennessee law. "As a matter of supremacy," she said, "the Tennessee statutes must be construed to comply with Obergefell's constitutional commands." Bonauto said that Obergefell applies retroactively, meaning that though Tennessee did not recognize same-sex marriage at the time the Witts wed, their marriage must now be considered legal in all states. The legal protection that state law provides to husbands must apply equally to wives, notwithstanding the gendered language of the existing law's language. "This is not rocket science," she said.


Though the judge didn't rule in Erica's favor, he put the action on hold while a motion to reconsider was filed. It was after that point that FACT, the conservative group, stepped in to offer its unsolicited opinion that "our state's sovereignty" required Erica to be denied the right to partial custody of her child.

What's crucial to recognize is that family law is designed to protect children, not to privilege some kinds of adults over others. LGBTQ family law experts who spoke with VICE were mystified that social conservatives appear so dedicated to stigmatizing same-sex couples that they've abandoned all pretense of concern for child welfare.

"This judge is keeping a mother from her child," Susan Sommer, director of constitutional litigation at Lambda Legal, told VICE. "It strikes at the very heart of what marriage carries with it, which is respect and recognition," not only for the couple's bond but "for parenting and family."

Indeed, Justice Anthony Kennedy's stirring decision in the Obergefell case states explicitly that marriage provides expansive protections that go beyond the needs of any individual couple, benefits that should accrue to tens of thousands of children with gay and lesbian parents. If the court failed to act, and instead allowed a "case-by-case determination" of whether every individual marital benefit should be offered to same-sex couples, he wrote, it would "deny gays and lesbians many rights and responsibilities intertwined with marriage."


Surely that should include recognition of the parental bond formed within a marriage—a point Kennedy himself alluded to, in writing that denying same-sex couples the right to marry would mean their children would be "relegated through no fault of their own to a more difficult and uncertain family life." In fact, several legal challenges that ended up rolled into the Obergefell case—including in Tennessee—began as parenting cases, in which lesbian couples sought to have the names of both mothers put on the birth certificates of their newborns. These cases were resolved by the Supreme Court's decision. Yet amazingly, in his trial-level ruling, Judge McMillan called Obergefell a "very limited decision" that addressed nothing more than marital status itself.

This is the horrific—and legally untenable—decision that Republican lawmakers in Tennessee have endorsed, in a radical departure from the proper duties of a state legislature.

"Normally, when there's a question of how to interpret a statute, legislatures don't insert themselves in private disputes and say, 'This is what we think,'" Nancy Polikoff, a law professor at American University Washington College of Law, told VICE. "That's not their role as legislators." Polikoff thinks it unlikely that the courts will allow the lawmakers to intervene.

The outcome of the Witt case remains in question. In the meantime, the world should know the true colors of the religious right and the Republican Party that remains in fealty to it. Now that same-sex marriage is the law of the land, and the family-values crowd is on the wrong side of the law, their effort to oppose LGBTQ equality is no longer a matter of protecting an idealized family configuration, but about prying apart the relationship between actual parents and children. This throws into stark relief their true priorities—homophobia for homophobia's sake—and the rank hypocrisy of claiming to care about kids while working to deprive children of legal ties to parents who love them.

Nathaniel Frank, director of the What We Know Project at Columbia Law School, will publish Awakening: How Gays and Lesbians Brought Marriage Equality to America in April 2017.