                                                                                       05/14/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                July 11, 2019 Session

         SANDRA ANN PIPPIN V. CHRISTINA MICHELLE PIPPIN

             Appeal from the General Sessions Court for Wilson County
              No. 2018-CV-2, 18-AD-242     John Thomas Gwin, Judge


                           No. M2018-00376-COA-R3-CV


ANDY D. BENNETT, J., dissenting.

       This opinion is stuck in the past. In my opinion, Obergefell v. Hodges, ___ U.S.
___, 135 S. Ct. 2584 (2015), altered the way we must interpret many statutes relating to
marriage and parentage. In Obergefell, the United State Supreme Court legalized same-
sex marriage in the entire United States. It has met with resistance, just like Brown v.
Board of Education of Topeka, 347 U.S. 483 (1954), and other United States Supreme
Court cases that required society to alter its thinking about its institutions.

        Since Obergefell was decided, Tennessee has not chosen to revamp its marriage
and parentage laws. Opponents of Obergefell refer to the Tennessee Constitution’s
prohibition against same-sex marriage. However, Obergefell nullified that provision, just
as Brown nullified Tennessee’s constitutional provision mandating racial segregation in
education, former Tenn. Const. Art. XI, § 12; Loving v. Virginia, 388 U.S. 1 (1967),
nullified Tennessee’s constitutional provision prohibiting interracial marriage, former
Tenn. Const. Art. XI, § 14; and McDaniel v. Paty, 435 U.S. 618 (1978), nullified
Tennessee’s constitutional provision prohibiting ministers from serving in the General
Assembly, Tenn. Const. Art. IX, § 1. Obergefell placed Tennessee in uncharted legal
territory. That does not mean that Obergefell and its implications may be ignored.

       The majority opinion dismisses the appeal based on standing. Before I discuss the
law, some facts need to be reiterated. These facts come from Sandra Pippin’s petition.
For purposes of a motion to dismiss, they must be taken as true. Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002).

           Sandra and Christina moved in together in September of 2008 along with
            Sandra’s adopted son, J.
           Sandra proposed to Christina and gave her a ring.           Christina legally
            changed her last name to Pippin.

           Sandra was the primary breadwinner.

           In late 2010 or early 2011, Sandra and Christina executed a sworn
            Domestic Partnership Affidavit to verify that they were a family, which
            allowed Christina to be placed on Sandra’s employee insurance plan.

           They jointly purchased semen from the Midwest Sperm Bank, Christina
            was artificially inseminated, and later gave birth to the child. Sandra and
            Christina intended for the child to be raised equally by both.

           Sandra was an active and willing participant in all pre-birth medical care.

           Sandra was present at the child’s birth and was the first person to hold him.

           From birth, the child knew Sandra as “Momma Sandy” and Christina as
            “Momma Christy, by agreement of the parties.

           Sandra was listed as the child’s other parent on all doctor, school and
            extracurricular activities forms.

           Sandra and Christy separated for a ten-month period, March 2014 to
            January 2015, but still co-parented the child.

           Sandra and Christy permanently separated in December 2016, but arranged
            a co-parenting plan.

           After an August 2017 attempt to reconcile, Christina began to renege on the
            agreed co-parenting schedule.

        Ultimately, after years of co-parenting the two children, Christina decided Sandra
was unfit to care for the child. Meanwhile, Christina embarked on a new romantic
relationship. Sandra filed a petition in the Wilson County General Sessions Court seeking
to establish parentage and parenting time. After a hearing on February 1, the court held
that it was in the child’s best interest to continue having parenting time with Sandra.
Christina filed a motion to dismiss on February 2, stating, “the parties were never
married, and the child is the biological child of Respondent, and is not the biological
child, adopted child or stepchild of Petitioner. Petitioner has no standing under
Tennessee law to seek parenting time.” On February 26, the trial court entered an order


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granting the motion. The court granted visitation between Sandra and the child pending
appeal.
       The majority opinion accurately summarizes the law of standing as follows:

               Standing is a judicial doctrine used to determine whether a party is
       “entitled to have a court decide the merits of a dispute.” The doctrine of
       standing precludes courts from adjudicating “‘an action at the instance of
       one whose rights have not been invaded or infringed.’” More specifically,
       this doctrine “restricts ‘[t]he exercise of judicial power … to litigants who
       can show ‘injury in fact’ resulting from the action which they seek to have
       the court adjudicate.’” Where the person seeks to base his or her standing
       on a statute, he or she must show that the “‘claim falls within the zone of
       interests protected or regulated by the statute in question.’” (citations
       omitted).

                         Tennessee Code Ann. § 68-3-306

       “A child born to a married woman as a result of artificial insemination, with the
consent of the married woman’s husband, is deemed to be the legitimate child of the
husband and wife.” Tenn. Code. Ann. § 68-3-306. The majority rejects this statute as
providing standing because the statute does not confer any rights of parentage, the
construction offered by Sandra is strained and there was no marriage.

        The majority maintains that Tenn. Code. Ann. § 68-3-306 merely deals with birth
certificates and nothing more. This attitude ignores the significance of appearing as a
parent on a birth certificate. Appearing on a birth certificate is “more than a mere marker
of biological relationships.” Pavan v. Smith, ___ U.S. ___, 137 S. Ct. 2075, 2078 (2017).
In fact, it is a vehicle for exercising many parental rights. A birth certificate is “a
document often used for important transactions like making medical decision for a child
or enrolling a child in school.” Id. That is why the United States Supreme Court held in
Pavan that same-sex and opposite-sex couples must be treated the same under the
Arkansas birth certificate statutes when artificial insemination is used. Id. at 2077. As
Pavan shows, birth certificates confer or support many parental rights.

       In light of Obergefell and Pavan, we must interpret Tenn. Code. Ann. § 68-3-306
as constitutional. Davis-Kidd Booksellers, Inc., v. McWherter, 866 S.W.2d 520, 529-30
(Tenn. 1993) (“When faced with a choice between two constructions, one of which will
sustain the validity of the statute and avoid conflict with the Constitution, and another
which renders the statute unconstitutional, we must choose the former.”). The Tennessee
Attorney General has applied this rule of interpretation to Tenn. Code. Ann. § 68-3-306.
In Witt v. Witt, No. E2017-00884-COA-R3-CV, 2018 WL 1505485 (Tenn. Ct. App. Mar.
27, 2018), this Court noted that “[t]he Attorney General asserted that the statute could be
read constitutionally, however, by employing Tenn. Code Ann. § 1-3-104, which

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provides: . . . (b) Words importing the masculine gender include the feminine and neuter,
except when the contrary intention is manifest.” Witt, 2018 WL 1505485, at *2. This
interpretation is constitutionally required. Thus, the word “husband” in Tenn. Code.
Ann. § 68-3-306 must be interpreted to include both the male and female genders.

       The majority’s last objection to Tenn. Code. Ann. § 68-3-306 providing standing
is that there was no marriage. This is true. Obergefell was not decided until the
relationship between Sandra and Christina was ending. So we must be mindful of the fact
that Tennessee would not let them marry. Sandra proposed to Christina. Sandra gave
Christina a ring. They executed a Domestic Partnership Affidavit. They held themselves
out as a family. And, perhaps most importantly for this case, they created the child
together.1 There is no difference between Sandra and the “husband” in Tenn. Code. Ann.
§ 68-3-306 except for a marriage that the State of Tennessee would not allow. We know
from Obergefell that the same-sex marriage prohibition violated Sandra’s due process
and equal protection rights. Fundamental notions of fairness and justice cannot allow a
constitutional violation of her rights to be the impediment to Sandra Pippin’s standing
under the facts of this case.

                                 Tenn. Code. Ann. § 36-2-304

        “A man is rebuttably presumed to be the father of a child if . . . [w]hile the child is
under the age of majority, the man receives the child into the man’s home and openly
holds the child out as the man’s natural child.” Tenn. Code Ann. § 36-2-304(a)(4).
Essentially, the application of this statute boils down to Sandra is a woman, not a man
and so, according to the majority, the statute does not apply because of the statute’s
definitions. The application of this statute is so clear to Sandra’s situation that one can
see the discrimination. Based on the case law I have already discussed, I would rule that
under the facts of this case Sandra Pippin has standing under Tenn. Code Ann. § 36-2-
304(a)(4) when it is read in a constitutionally neutral way.

                                 Other Considerations

       The majority opinion also relies on In re Thompson, 11 S.W.3d 913 (Tenn. Ct.
App. 1999) and In re Hayden C. G-J., No. M2012-02701-COA-R3-CV, 2013 WL
6040348 (Tenn. Ct. App. Nov. 12, 2013), for the proposition that a partner of a biological
mother does not have standing to seek visitation. These cases were decided before
Obergefell. As I stated at the beginning of this dissent, Obergefell changes the way we
must look at marriage and parentage statutes. If they ever did, In re Thompson and In re
Hayden C. G.-J. no longer govern this case.


1
 One could reasonably infer that because Sandra was the breadwinner, she paid for the semen and the
procedures needed for the artificial insemination.
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        We give great deference to trial courts in the areas of child visitation. When
giving his oral decision, the trial judge observed that “There is no question in my mind
that it would be in this child’s best interest to continue in the only family that he’s ever
had.” Transcript of February 15, 2018 at 30. The trial court granted Sandra visitation
during the proceedings and pending the appeal. That speaks volumes. He also said the
following:

               I don’t believe outside of legislative relief that you’ll get any relief
       short of the Tennessee Supreme Court. And if they concern themselves - -
       boy, that’s harsh. If they concern themselves with the best interest of the
       child, then they’ll give the trial-level court something else to work with.

Transcript of February 15, 2018 at 38.

                                         Conclusion

       I would grant Sandra Pippin standing and remand the case for further proceedings.
In a judicial system where right and justice are paramount, there is no way that Sandra
Pippin should be denied her parental rights to the child. Therefore, I respectfully dissent.



                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE




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