In 2017, would Tennessee SB 1085/HB 1111's 'ordinary meaning' rule create a separation-of-powers problem or undermine Obergefell when courts read gender-specific terms in statutes?

Plain-English summary

SB 1085/HB 1111 would have added a subsection to Tenn. Code Ann. § 1-3-105 saying: "As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest." The bill was a near-verbatim codification of the ordinary-meaning canon courts already apply. Representative Bill Beck asked two questions: would the bill violate the Tennessee Constitution's separation-of-powers principles, and would it force gender-specific words like "husband" and "wife" to be construed literally in ways that violate Obergefell v. Hodges?

Separation of powers. Possible challenge, but unlikely to succeed. The AG noted that Article II, Sections 1 and 2 of the Tennessee Constitution divide power among the three branches. Statutory interpretation is a judicial function. A statute that directed courts in how to interpret statutes could be argued to encroach. But the AG cited Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006): "A legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch of government." The bill was better read as an expression of legislative intent, and courts already construe statutes per legislative intent under Mangrum v. Owens, 917 S.W.2d 244 (Tenn. Ct. App. 1995). State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001), also suggested that legislative rules of construction that are reasonable and workable within the existing judicial framework do not offend separation of powers. The bill was a codification of an already-judicially-adopted canon, so it should survive.

Obergefell compatibility. Mixed. Some Tennessee Code provisions use gender-specific words like "husband," "wife," "father," "mother." If read strictly by their ordinary meaning, certain marriage-related provisions could exclude same-sex spouses in ways that conflict with Obergefell v. Hodges, 576 U.S. 644 (2015). Tennessee was a defendant in Obergefell and is bound. But the AG identified an important interaction. Tenn. Code Ann. § 1-3-104(b) already says masculine words include feminine and neuter "except when the contrary intention is manifest," and the Tennessee Supreme Court has long read gender-specific terms inclusively under that rule (see Balch v. Johnson, 1901; Railway Co. v. Lilly, 1891).

The two rules pull in opposite directions. § 1-3-104(b) is specifically about gender; SB 1085 is about ordinary meaning generally. Under the specific-general canon (In re Harris, 849 S.W.2d 334 (Tenn. 1993)), the specific controls the general. So for gender-specific terms, § 1-3-104(b) would likely override SB 1085's ordinary-meaning rule unless the legislature clearly manifested an intent that the words at issue are gender-specific.

The bottom line: SB 1085 would not categorically force Tennessee statutes into Obergefell conflicts, because the existing gender-inclusive rule would mediate most cases. But the new rule would create more interpretive friction in particular statutes where gender-specificity could be argued to be the legislature's manifest intent.

Currency note

This opinion was issued in 2017. Obergefell v. Hodges remains controlling federal precedent. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the Tennessee analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The proposed § 1-3-105(b) codification of the ordinary-meaning canon would have sat alongside Tennessee's existing gender-inclusive rule in § 1-3-104(b). The two rules are uneasy neighbors.

The ordinary-meaning canon. Tennessee courts have long applied the canon. Carson Creek Vacation Resorts v. Department of Revenue, 865 S.W.2d 1, 3-4 (Tenn. 1993), is a standard cite. Courts give undefined statutory words their natural and ordinary meaning, without forced or subtle construction, unless a contrary intent is clearly manifest. SB 1085 would have codified the canon almost verbatim.

The separation-of-powers concern. The Tennessee Constitution's Article II, Sections 1 and 2, divide government into legislative, executive, and judicial branches and prohibit one branch from exercising "any of the powers properly belonging to either of the others." Statutory interpretation is a judicial function. Could the legislature tell courts how to do that?

The AG read prevailing Tennessee caselaw as forgiving. Lynch v. City of Jellico held that a legislative rule does not encroach on judicial power if it does not frustrate or interfere with the adjudicative function. State v. Mallard held that even legislative procedural rules can survive if they are "(1) . . . reasonable and workable within the framework already adopted by the judiciary, and (2) work to supplement the rules already promulgated by the Supreme Court." SB 1085 was both. It codified a canon courts already use, and it didn't impose any new framework on the judicial process. Separation-of-powers analysis was therefore very unlikely to invalidate it.

The gender-inclusive rule. Tenn. Code Ann. § 1-3-104(b) says: "Words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest." Tennessee courts have applied this rule for over a century. Balch v. Johnson (Tenn. 1901) held that the masculine "his" in an adoption statute didn't exclude a married woman from joining in adoption. Railway Co. v. Lilly (Tenn. 1891) held that the feminine "widow" in a wrongful death statute included a widower.

The Obergefell layer. Obergefell v. Hodges (2015) held that same-sex couples may exercise the fundamental right to marry and that state laws are invalid to the extent they exclude same-sex couples from civil marriage. The State of Tennessee was a defendant in Obergefell and is bound. So any reading of Tennessee marriage statutes that excludes same-sex spouses is unconstitutional.

The interaction. SB 1085 would say "give words their ordinary meaning." If a statute says "husband" or "wife," the ordinary meaning of those words could be read in their long-standard gendered sense, which would exclude same-sex spouses for purposes of statutes related to marriage. But § 1-3-104(b) already says the masculine includes the feminine and neuter, which can pull gender-specific terms toward an inclusive reading.

The AG's resolution. The specific-general canon (In re Harris; Washington v. Robertson County; Rent-N-Roll v. Highway 64 Car & Truck Sales) says when two statutes conflict, the specific controls the general. § 1-3-104(b) is specific (it deals with gender). SB 1085 is general (all undefined words). So in a conflict, § 1-3-104(b) wins. Courts would likely read gender-specific terms in statutes inclusively in most cases, consistent with both Obergefell compliance and the long-standing § 1-3-104(b) practice.

The opinion stopped short of saying the bill was constitutionally infirm. It was a useful caution for legislative drafters: the bill could create interpretive friction in cases where the legislature can be argued to have manifestly intended gender-specific meaning, especially in marriage-related provisions. Drafting clarity in such statutes would matter more after enactment than before.

Common questions

Q: What did SB 1085/HB 1111 do?
A: It would have codified the ordinary-meaning canon of statutory construction, instructing courts to give undefined statutory words their natural and ordinary meaning unless a contrary intent is clearly manifest.

Q: Would this violate separation of powers?
A: Possibly an issue, but the AG saw the challenge as unlikely to succeed. The bill codified a canon courts already used and didn't impose a foreign framework on the judiciary.

Q: Could the bill have caused Obergefell problems?
A: In theory yes, if the bill forced literal gendered readings of marriage-related statutes. But the existing § 1-3-104(b) gender-inclusive rule would, under the specific-general canon, likely override SB 1085's general ordinary-meaning rule in most gender-related cases.

Q: What's the specific-general canon?
A: A specific statutory provision controls over a more general one when they conflict. In re Harris, 849 S.W.2d 334 (Tenn. 1993), is a leading cite. The AG used it to mediate the tension between the two construction rules.

Q: Is Obergefell still good law?
A: Yes. Obergefell v. Hodges (2015) remains controlling federal precedent on the right to marry for same-sex couples.

Q: What's the existing gender rule in Tennessee statutes?
A: Tenn. Code Ann. § 1-3-104(b): "Words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest." Tennessee Supreme Court cases have read this rule expansively since at least 1891.

Citations and references

Statutes:

• Tenn. Code Ann. § 1-3-104(b)
• Tenn. Code Ann. § 1-3-105

Cases:

• Carson Creek Vacation Resorts v. Department of Revenue, 865 S.W.2d 1 (Tenn. 1993)
• Underwood v. State, 529 S.W.2d 45 (Tenn. 1975)
• Lynch v. City of Jellico, 205 S.W.3d 384 (Tenn. 2006)
• Mangrum v. Owens, 917 S.W.2d 244 (Tenn. Ct. App. 1995)
• State v. Mallard, 40 S.W.3d 473 (Tenn. 2001)
• Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
• Balch v. Johnson, 106 Tenn. 249, 61 S.W. 289 (1901)
• Railway Co. v. Lilly, 18 S.W. 243, 90 Tenn. 563 (1891)
• In re Harris, 849 S.W.2d 334 (Tenn. 1993)
• Washington v. Robertson County, 29 S.W.3d 466 (Tenn. 2000)
• Rent-N-Roll v. Highway 64 Car & Truck Sales, 359 S.W.3d 183 (Tenn. Ct. App. 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-029.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 13, 2017
Opinion No. 17-29
Statutory Construction Legislation

Question 1
Does Senate Bill 1085/House Bill 1111, 110th Gen. Assem. (2017), violate any provision of the United States Constitution or the Constitution of Tennessee?

Opinion 1
It is possible, but unlikely, that this proposed legislation could be viewed as a violation of the separation-of-powers doctrine embodied in the Tennessee Constitution.

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.

ANALYSIS

Senate Bill 1085/House Bill 1111, 110th Gen. Assem. (2017), would amend Tenn. Code Ann. § 1-3-105, which provides definitions of 37 words and phrases "as used in this code," to add the following subsection:

(b) As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.

If enacted into law, this would be a virtually verbatim codification of one of the most basic canons of statutory construction, the "ordinary-meaning canon," which has been long and consistently applied by courts in Tennessee. See, e.g., Carson Creek Vacation Resorts v. Department of Revenue, 865 S.W.2d 1, 3-4 (Tenn. 1993).

The Tennessee Constitution contemplates a balance of powers among the three branches of government and, to that end, incorporates a separation-of-powers doctrine. Article II, section 1, divides the "powers of the Government . . . into three distinct departments: the Legislative, Executive, and Judicial." Article II, section 2, prohibits "persons belonging to one of these departments" from exercising "any of the powers properly belonging to either of the others." It is the general rule that the power to make, order, and repeal the laws belongs to the legislative branch; the power to interpret and apply the law belongs to the judicial branch; and the power to administer and enforce the law belongs to the executive branch. Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975).

Based on this general view of the division of power, a claim might be made that the proposed legislation violates the separation-of-powers doctrine because it could be read as an attempt to control how the judicial branch is to exercise its power to interpret the law. But the success of such a claim is highly unlikely. First, "[a] legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch of government." Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006). The proposed legislation is more appropriately read as an expression of the Legislature's general intent about the language it uses than as a mandate to the courts. And, since courts are charged in the first instance with construing statutes in accordance with the intent of the Legislature, Mangrum v. Owens, 917 S.W.2d 244, 246 (Tenn. Ct. App. 1995), an expression of legislative intent assists, but does not interfere with, the adjudicative function of the courts.

Second, the Tennessee Supreme Court, in which resides the power to promulgate rules of procedure for the courts, will generally consent even to rules of procedure that are promulgated by the Legislature if they "(1) are reasonable and workable within the framework already adopted by the judiciary, and (2) work to supplement the rules already promulgated by the Supreme Court." State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001). Since the proposed legislation is nothing more than a codification of a rule of statutory construction already adopted by the judiciary, separation of powers should not be an impediment to that codification.

In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the United States Supreme Court held that "same-sex couples may exercise the fundamental right to marry," that state laws are "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples," and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." 135 S. Ct. at 2604-05, 2608. The State of Tennessee was a defendant in Obergefell and is bound by its holding.

There are many provisions in the Tennessee Code that use the words "husband," "wife," "father," "mother," "woman," "man," or other gender-specific words such as "testator" or "foreman." Construed literally as would be required under the proposed legislation — and depending on the context — some, but certainly not all, such statutes might run afoul of the holding in Obergefell. 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. Statutes that are wholly unrelated to marriage or the terms, conditions, benefits, or obligations of marriage would not necessarily be in conflict with Obergefell if gender-specific words in those statutes were construed literally.

We note, however, that even 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 about how gender-specific words are to be construed when they appear in the Tennessee Code — an intent that is to some extent in direct conflict with the proposed legislation. Tennessee Code Annotated § 1-3-104(b) instructs that "[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest." Based on that legislative instruction, the Tennessee Supreme Court has found that use of the masculine pronoun "his" was not intended to preclude a married woman from joining her husband in the adoption of a child. Balch v. Johnson, 106 Tenn. 249, 255-56, 61 S.W. 289, (Tenn. 1901). Similarly, the feminine "widow" used in a statute allowing damages for wrongful death has been construed to include the masculine gender as well, so that a widower was also entitled to damages under the statute. Railway Co. v. Lilly, 18 S.W. 243, 90 Tenn. 563, 568 (Tenn. 1891).

If a statute uses the masculine "he," the proposed legislation would require that pronoun to be read as referring exclusively to male persons and could not be read to include women, unless "a contrary intention is clearly manifest." But the existing law — Tenn. Code Ann. § 1-3-104(b) — would require just the opposite, namely that the "he" be construed to include women, unless "a contrary intention is clearly manifest." Put another way, the proposed legislation and the existing law each "clearly manifest" an intention that is contrary to the other. If the proposed legislation becomes law and a court were asked to resolve this conflict, it would do so by applying another time-honored canon of statutory construction, the "specific-general" canon: "As a matter of statutory construction, a specific statutory provision will control over a more general statutory provision." In re Harris, 849 S.W.2d 334, 337 (Tenn. 1993). See also Washington v. Robertson County, 29 S.W.3d 466, 475 (Tenn. 2000); Rent-N-Roll v. Highway 64 Car & Truck Sales, 359 S.W.3d 183, 188 (Tenn. Ct. App. 2010).

Here, the proposed legislation is exceedingly general, broadly requiring that words be given their ordinary meaning. Section 1-3-104(b), on the other hand, is exceedingly specific, limited to the interpretation of gender-specific terms in statutes. Any conflict between the two provisions 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, unless it were clear that the Legislature intended the words at issue to be gender specific.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Bill Beck
State Representative
24 Legislative Plaza
Nashville, Tennessee 37243