by Mike Andrew - SGN Staff Writer

Fifty-three Republican state legislators have teamed up with a Christian anti-Gay group in Tennessee to intervene in the pending divorce of two women who are arguing over child custody.

The Family Action Council of Tennessee (FACT) announced that its legal arm, known as the Constitutional Government Defense Fund, is representing the legislators in filing a motion to intervene in the divorce case of Sabrina Renae Witt vs. Erica Christine Witt.

The Witts were legally married in Washington, D.C., in April 2014, when same-sex marriage was legal there but still prohibited in Tennessee. They subsequently had a child, conceived by Sabrina through artificial insemination.

In its Obergefell decision last year the US Supreme Court made their marriage valid throughout the country, but in Tennessee there is still no state law allowing same-sex marriage and there are several ancillary laws that make reference to 'husband' or 'wife' but not to same-sex couples.

When the Witts filed for divorce, Erica - the nonbiological mother of their child - asked for joint custody.

In June, however, Knox County Circuit Court Judge Greg McMillan ruled that Erica Witt has no legal rights under Tennessee law to involvement with the couple's daughter because the relevant Tennessee statute dealing with parenting rights in cases of artificial insemination speaks only about the 'husband' of the birth mother and does not cover the mother's same-sex spouse.

The motion filed by the Family Action Council on behalf of the GOP legislators appears to endorse the position taken by McMillan in his ruling.

The motion contends the lawmakers' 'unique and substantial interest in the legislative power and process will be impeded, impaired, and/or nullified' if courts interpret a state law 'to apply to any persons other than a man and woman joined together as 'husband' and 'wife.'

In a press release, David Fowler, a lawyer who is executive director of FACT and a former Republican state senator, said the 53 legislators 'are defending the will of the people.'

'They understand the importance of this case constitutionally,' he said. 'This is not a case involving the policy that should be applicable in situations such as this. Rather, this case involves a very important constitutional question: Does the US Supreme Court's Obergefell decision authorize judges to determine for state legislative bodies what policies it must have relative to custody issues in divorce proceedings?

'If it does, then matters of family law, which have historically been within the constitutional powers of the states to determine, will have essentially been judicially taken from the states and placed in the hands of federal judges,' Fowler said.

In his ruling, Judge McMillian authorized an appeal, putting the divorce action on hold pending a state court of appeals decision on whether to hear the issue.

'Given the novelty of this issue, the court thinks it appropriate to see if the appellate courts want to address this,' the judge said.

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