Ropes & Gray Submits Merits Brief in Landmark Marriage Equality Case

Ropes & Gray, along with the National Center for Lesbian Rights and several Tennessee firms, filed a merits brief in the U.S. Supreme Court on Feb. 27 in the case of Tanco v. Haslam, one of four landmark marriage equality cases the Court is set to hear later this term.

The brief was filed on behalf of three same-sex couples (the petitioners) who were lawfully married while living in other states and then moved to Tennessee, where their marriages were not recognized under state law. Although the District Court ordered the State to recognize the petitioners’ marriages, the Sixth Circuit reversed. Ropes & Gray then helped draft the petition for a writ of certiorari, which the Supreme Court granted along with three other marriage equality cases that had been joined with Tanco before the Sixth Circuit.

In the merits brief, the petitioners argue Tennessee’s disregard for their lawful marriages: (1) violates their right to remain married, along with their liberty and privacy interests in their marriages, protected by the Due Process Clause; (2) unreasonably burdens their fundamental right to travel by imposing legal nullification of their marriages as the price of entering the State; and (3) fails any level of scrutiny (though heightened scrutiny is required) under the Equal Protection Clause in that non-recognition discriminates on the basis of sex and sexual orientation without justification. 

In support, the petitioners note that non-recognition runs contrary to Tennessee’s long followed practice of respecting marriages validly entered into in other states (even where that marriage would not have been legal in Tennessee). Moreover, the brief contends that non-recognition not only deprives petitioners and their children of any number of legal protections, it also “continually communicates to petitioners, to their children, and to other Tennesseans that the State regards petitioners and their families as second-class citizens.” In doing so, the brief concludes, Tennessee disrespects the “enduring relationships created between petitioners” by other states and undermines “principles of federalism” – including “cooperation among states” – “on which our Union depends in order truly to be united.”

The Ropes & Gray team was led by appellate and Supreme Court litigation partner Douglas Hallward-Driemeier (Washington, D.C.), and included litigation associates C. Thomas Brown (Boston), Paul Kellogg (New York) and Emerson Siegle (Washington, D.C.), with paralegal support from Sophia Antzoulatos (Washington, D.C.).

To read the brief, click here.