Last week I mentioned one of the reasons the states lost the rights and prerogatives that were supposed to be retained by them under the Tenth Amendment. This week I’ll point to an amendment to the Constitution that had the unintended effect of further undermining the Tenth Amendment, but more importantly, there may be a lesson we can learn from how that amendment passed that might point a way forward today.
In my commentary How We Lost the Tenth Amendment, I pointed out how the Supreme Court has increasingly encroached on the rights of the states and why Congress has failed to protect the states. But it is not just the Court that has trampled on the rights of states; Congress itself has often gotten in on the action.
The Intended ‘Checks’ on Congress
There was one very important protection given the states under the original Constitution that would have incentivized pushback against the Court and legislative restraint by Congress. It was the “election” of U.S. Senators by the state legislatures. Let me give you a real-life example of how that check might have worked.
How the ‘Check’ Worked in Real Life
As a state Senator, I remember carrying a bill to change a state law in order to comply with a federal mandate on the collection of child support, an inherently state function, like the issue of marriage recently taken over by the Court. The mandate was so egregious and contemptuous of our state law that the mild-mannered and gentlemanly former state Sen. Douglas Henry, a Democrat, slammed down his microphone after speaking against the bill and excused himself from the Senate chamber lest, in his own words, he say something he would regret. The contempt for Congress at that moment was virtually unanimous and bi-partisan!
I tell you that to assure you of this. That particular law would never have passed the U.S. Senate if those then serving in the Senate had had to come to us the next time they were up for “election.” They would have been turned out on their ear.
But here is the key point: It was an issue that the majority of Tennessee’s voters were unaware of and one that would not have damaged their chance of re-election based on popular vote.
The Amendment That Solved What Problem?
Popular vote for the members of the U.S. Senate is exactly what we got with the adoption of the Seventeenth Amendment. It replaced the selection of senators by state legislatures with direct elections
This is not to say that there were no problems with the selection by state legislatures of the members of the Senate. There were mainly two. The first was a feeling that senatorial elections were “bought and sold,” William Clark of Montana famously saying that when he bought a state legislator for the Senate, he expected him to stay bought. The second was that legislatures sometimes reached an impasse on who to select, and a Senate seat would go vacant for a while.
But do we not today feel like elections for the U.S. Senate are still all about who has the most money? Was the problem really solved, or was the pot of money needed to “buy” an election just made bigger and put more out of reach by more people because of the number of votes that now have to be “bought?” The deadlock issue was not that frequent, and the losers were the states themselves; they had a disincentive to deadlock.
A Plan Going Forward
Interestingly, the pressures that brought about the Seventeenth Amendment might be instructive in restoring some vitality to the Tenth Amendment.
The movement for the Seventeenth Amendment began in earnest in the late 1800s, but by 1910, thirty-one state legislatures had passed resolutions in support of a constitutional amendment for direct elections. That same year, the Senate was awakened to the demands of the people by seeing ten Republican senators opposed to the amendment forced out of their seats. And by 1912, twenty-seven states had called for a constitutional convention on the subject, close to the thirty-one then states needed to force the call.
Today, the call for a constitutional convention is growing louder. Tennessee’s Senate resoundingly passed a resolution for a convention last year and the House will take it up this year. Whether the convention is a good idea is a discussion for another day, but it is a means by which the states can raise their voices.
What is missing is a growing movement of states passing resolutions demanding Congress interpose itself between the states and the federal judiciary and the defeat of a few members of Congress who do not head those resolutions. Perhaps during the next legislative session we can start a “resolution movement” by passing a demand that Congress reign in the federal courts by various means. Then we can press this issue in future Congressional elections, starting next year.
I’m up for it. Are you?
—David Fowler, President of FACT
As I continue to reflect on the Supreme Court’s marriage ruling, I’ve wondered how we got to the point that the states lost control of an area of the law that, just two years ago, the Court acknowledged to be historically within their province. I have an idea, and the blame for it lies at our feet.
Recently, I was re-reading portions of the Federalist Papers to better understand the role of the federal judiciary as envisioned by our Founding Fathers. I was doing so that I might learn something from the past that would help me better understand what could be done in the present to reign in the Supreme Court in order to restore greater liberty to the people by returning more power to the states.
In Federalist Paper 46, James Madison said that “the powers proposed to be lodged in the federal government” (which includes the judicial branch) would be “as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union.” Madison said this to silence “all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments” by those opposed to the Constitution.
More particularly, Madison said the hope was that structure and limited powers under the Constitution would “partake” of a “spirit” such that the “new federal government” would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”
This was true even with respect to the judiciary. In discussing the role of the judiciary in Federalist Paper 82, Alexander Hamilton said, “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head,” which “head” obviously included the federal Judiciary.
So, if that was the intention, we have every right to ask what happened. Were not the other two branches of the “federal head”–the Executive and the Congress–infused with that “spirit” which was to protect the “rights” and “prerogatives” of the states?
Of course they were, but they have failed to use them. But why?
I think the answer can be found, at least in part, in Federalist Paper 78, wherein Hamilton said that “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”
In my view, that “fear” has been realized because expansive powers given by the Supreme Court to Congress (consider Obamacare, now known as SCOTUScare) and to the Executive have given rise to the aforesaid “union,” aggregating in “the federal head” great power by which their respective attentiveness to the governments of the states has been diminished.
I’m not necessarily big on conspiracy theories, but I am big on the fact that men are not angels, as Madison said in Federalist Paper 51. In other words, men lust for power and control and have since Adam and Eve decided to take things in their own hands. The Supreme Court gave Congress and the Executive powers beyond those envisioned by our Founding Fathers and, as they say, who wants to “bite the hand that feeds them”?
So, is the loss of our “rights” and “prerogatives” as a state the fault of our presidents and members of Congress over the years? No, the fault is ours. “We the people” have failed to understand our own Constitution and how our compound form of government–a limited federal government and state governments–was supposed to work. As a consequence, we’ve given our votes to presidents and members of Congress who either did not understand it or who wanted to aggregate power to themselves.
We have met the enemy and it is us.
— David Fowler, President of FACT
Today I was stopped dead in my tracks over yet one more consequence of the Supreme Court’s ruling on marriage in Obergefell. What stopped me was the fact that it had nothing do to with marriage. Instead, the marriage decision just might result in one of Tennessee’s pro-life laws being ruled unconstitutional.
The pro-life law in question is the prohibition in Tennessee of physician-assisted suicide. The constitutionality of that law is now being challenged in a Davidson County Chancery Court. Oral arguments were recently made and briefs are being filed. The brief I was reading cited the Obergefell opinion as authority for the proposition that there is a constitutional right to physician-assisted suicide (PAS).
If you’re like I was when I read that, you’re thinking, “What does a constitutional right to same-sex “marriage” have to do with whether Tennessee’s law on physician-assisted suicide is unconstitutional? How does a constitutional right to same-sex “marriage” give rise to a constitutional right to die?” Great question. Let me answer that.
Didn’t the Supreme Court Already Reject This Right?
In a 1997 case, the United States Supreme Court ruled in Washington v. Glucksberg that there was no constitutional right to physician-assisted suicide. So, you say, “Shouldn’t that settle the issue, then?”
You might think so, but remember that in the 1972 case of Baker v. Nelson, the Supreme Court said that a lawsuit for same-sex “marriage” didn’t even present a “federal question,” let alone give rise to a constitutional right. Forty-three years later, the Court said the Constitution evolved while we were sleeping and that same-sex “marriage” was a constitutional right.
If Baker didn’t “bind” the Supreme Court on the issue of marriage, there is no reason to think it will be bound by Glucksberg either. In fact, the reason the physician-assisted suicide proponents cited Obergefell is because it effectively overruled the reasoning in Glucksberg.
How Obergefell Changed the Constitution on PAS
Here is a very shorthand way of explaining what I mean. Glucksberg said that new constitutional rights must be somehow firmly rooted in our history before the Supreme Court will recognize them. Assisted suicide was not firmly rooted in our history, and so Glucksberg said there was no constitutional right to it.
But that “history thing” set up a barrier to the current Supreme Court “finding” a new constitutional right to same-sex “marriage.” After all, same-sex “marriage” was not firmly rooted in our history.
Thus, the Obergefell Court had to scrap the Glucksberg notion that rights had to be tied to history, and so they did. In its discussion of Glucksberg, this is what the Obergefell Court said about the “restriction” on new rights:
“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
In other words, the “past”—meaning history—doesn’t matter. That’s why Justice Roberts said in his dissenting opinion in Obergefell that “the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process.”
There you have it. The barrier that might have existed to prevent a court from now finding a constitutional right to physician-assisted suicide no longer remains!
Were the Disabled Wasting Their Breath?
Last month I listened with great interest to the impassioned speeches of advocates for the physically and mentally disabled against a bill that would repeal our law against physician-assisted suicide. They explained and offered examples showing how easy it would be for them to become victims in a culture that condoned physician-assisted suicide.
Like those who may feel like we wasted our breath defending marriage in our state’s laws, they may find themselves feeling the same way when the courts finish with this lawsuit. The law that protects them may also prove, by judicial magic, to be unconstitutional.
Did Only Marriage ‘Die’?
I hope this helps more of us see that what Justice Scalia said in his dissent is really true, namely, that as bad as the marriage “result” was, even worse was the rationale of the majority. Our cultural understanding of marriage may not prove to be the only thing that died in June.
The Court’s rationale made our ability to govern ourselves and exist as a nation of sovereign states subject to the whims of this unelected “committee of nine lawyers” we call the Supreme Court. Self-government, state’s rights, and the Tenth Amendment may have died, too. They were, for sure, put on life support.
But that’s not all that may have died. If the Court overrules our laws against physician-assisted suicide, it may just be your right to live that gets overruled if someday you get too old, too costly, or too infirm.
—David Fowler, President of FACT
Like many, I am decidedly not happy with the Supreme Court’s ruling on marriage. While I hoped and prayed for a different result, I had been anticipating this most recent decision for years. Over the last year or so, I’ve been thinking about what we could do if we lost. Right now I have more questions than answers.
Since the ruling, I have been hearing a lot of talk about a special session. Many citizens are demanding that there be one. They naturally and understandably want the legislature to “do something”—either to “stand for marriage” or “stand for the Constitution and state’s rights.”
Taking a Right Stand
I’m all for taking stands and have been doing so for years. But I’ve learned that in politics, as in life, the best course is to do the following:
- Evaluate a situation fully to understand all the issues,
- Consider all the possibilities for addressing those issues and their pros and cons in terms of short-term and long-term consequences/implications,
- Figure out who is on my side and who isn’t,
- Inventory the “resources” needed for and available to get the job done once I’ve determined what “the job” is
- Develop a wise strategy to get it done.
That kind of process is exactly the opposite of what has the appearance of a “fire, ready, aim” approach. Generally speaking, it seems that many of the people calling for a special session not only do not appreciate the dynamics of a special session as distinguished from a regular session, but they don’t know yet what it is they want their legislators to do when they arrive for that special session.
I don’t blame them for not knowing what to do, because I’m not confident I know what to do either.
Getting Out of the Marriage Business
Of course, some do think they know what they want our legislators to do. What I keep hearing about is “getting the state out of the marriage business.” That sounds good, but I still don’t know what it means or what a law that “gets us out of the marriage business” looks like.
Surely, they don’t mean that every law on the books dealing with marriage and children will be repealed. If that’s what they mean, then we’ll have chaos. It may get the state out of marriage issues on the front end, but it will not get the state out of family issues on the back end.
If they only mean that the state won’t “officially” sanction a marriage, then is there going to be no definition of marriage? If that’s what they mean, then they need to understand that polygamists will be signing up tomorrow, and the state has no argument to make against it. I’m not for that.
But if there is going to be a definition of marriage, then what is it going to be? It will be either one the Supreme Court will like, which legislators won’t want to vote for because it will be genderless, or it will be one that a federal judge will enjoin the minute it passes. This will effectively accomplish nothing other than giving folks the satisfaction of “making a statement,” subjecting taxpayers to paying the attorney’s fees of the ACLU, and getting a County Clerk arrested by U.S. Marshals for disobeying a federal court order.
I want to do something, but I want to see the legislature do the best thing possible that will actually accomplish something positive.
One thing that might be possible and have a positive effect long term is to look at legislation that would begin to reconstruct marriage by re-instituting the elements of marriage that heterosexuals took out of the definition years ago, for example, the notion of permanence we removed with no-fault divorce laws.
But I don’t hear anyone talking about that. That kind of bill would be hard work, and it might not be liked too much by heterosexual voters who view themselves as having a “right” to walk away from a marriage if they are no longer in love or are unhappy
We’ve not had a discussion about that aspect of marriage for a long time. But if we’re going to talk about marriage, why not talk about all aspects of what constitutes a marriage?
Taking What the Court Gives
Interestingly, the Court has left the aspect of marriage dealing with permanence open to the states to talk about and act on. I have to guard against my tendency to want to attack the Supreme Court for completing the journey to the deconstruction of marriage and to avoid talking about any complicity I might have in initiating that journey or in allowing it to proceed unabated for decades. The former is an easy conversation and the latter not quite so pleasant.
We’ve got a long, slow journey back to a right understanding of marriage, and in my opinion, we need a much deeper, broader, and serious discussion about how to get there than the ones I’m hearing now.
For an excellent series of articles by Jennifer Roback Morse of the Ruth Institute on whether “getting out of the marriage business” is possible or practical, check out the following links:
- Privatizing Marriage Is Impossible
- Privatizing Marriage Is Not the Answer to the Same-Sex Marriage Debate
- Privatizing Marriage Is Unjust to Children
- Privatizing Marriage Will Expand the Role of the State
— David Fowler, President of FACT
I confess that this year I am having a hard time with the idea of celebrating the 4th of July Independence Day. It is not because I am not thankful to God for what was done on that day, what it represents, and the blessings I’ve experienced that flow from it. On the other hand, I want to think that maybe this year’s celebration will mark a period in our history in which a new movement for independence was ignited. I hope this will help stir the flame.
What makes the celebration hard for me this year is that, in my mind and to a significant extent, the flame for liberty under law launched in 1776 has been largely snuffed out by the judicial branch of government, and the federal judiciary in particular.
Overthrowing Our Constitution and Separation of Powers
In dissenting from the majority opinion in the marriage case, Justice Scalia expressed more eloquently what I just said:
“But what really astounds is the hubris reflected in today’s judicial Putsch. … They [the majority of Justices] are certain that the People ratified the Fourteenth Amendment [in 1868] to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’”
If we don’t understand the word “putsch,” then we won’t appreciate the gravity of what Scalia said. According to Webster’s Dictionary, a “putsch” is “a secretly plotted and suddenly executed attempt to overthrow a government.”
How is the majority’s decision an overthrow of our government? Justice Scalia explains:
“[The Due Process Clause] stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes.”
In other words, we truly are no longer a self-governing people, but, as Justice Scalia said, a people “subordinate to a committee of nine unelected lawyers.” Rightly does he say that such “does not deserve to be called a democracy.”
Overthrowing Control Over Our State Constitution
The judicial disdain for our form of government was put on further display this week when federal District Judge Kevin Sharp decided it was incumbent on him, as a federal judge, to interpret our state constitution’s provisions governing the means by which amendments to our state constitution are to be adopted.
Under long-standing principles of federal court jurisdiction, federal courts should abstain from interpreting a state constitution unless the argument is that the constitution itself violates a provision of the U.S. Constitution. But that is not the kind of argument really being made here. The argument is that state officials didn’t interpret our constitution correctly and haven’t done so for decades. And I have to ask, “Who is this arrogant federal judge to decide that for us?!” That is a uniquely state question that the state should answer.
Scalia’s Invitation to Action
As I reflect on Judge Sharp’s actions and the judicial putsch of our Supreme Court, I am stirred by the closing comments in Justice Scalia’s dissent:
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. … With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” (emphasis supplied)
Justice Scalia, thank you for the invitation to remind our federal judges that their authority flows from Almighty God through “we the people.” It is, in fact, past time to remind them of their impotence if they think it their prerogative to overrule millennia of thinking regarding marriage and the votes of millions of Americans in regard to their state constitutions.
We will remind them, I hope, by strongly urging members of Congress to seriously consider filing articles of impeachment relative to Justices like Kevin Sharp, who arrogantly usurp authority over a state’s constitution, and relative to Justices like Ginsberg and Kagan, who presided over same-sex “marriages” yet did not recuse themselves from the ruling contrary to the federal law that requires recusal if a justice’s “impartiality might reasonably be questioned.”1
And we will also remind these Justices of their impotence by our growing insistence that Congress consider constitutional measures to reform lifetime judicial appointments and perhaps demand that Congress renew the long-forgotten debate over whether Congress should be able to “overrule” by some means a Supreme Court decision.
I believe we will do that if we, on this Independence Day weekend, remember what Patrick Henry said in his “Give me liberty” speech and remember that the blood of patriot fathers like him still runs in our veins. I invite you to listen to this dramatic rendering of Henry’s speech.” And then I invite you to spend some of your Independence Day considering what course you plan to take in the days ahead to restore this great Republic.
If we who love liberty will do that and stand together—despite our differences on particular policy issues—and use the lawful tools available to us, then this may be an Independence Day future generations will long remember celebrating.
1“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S. Code § 455
— David Fowler, President of FACT
Increasingly, I feel like our country and, indeed, our world, are unraveling at the seams. And I run into an increasing number of people who think that, too; maybe you are one of them. Is there a solution? The short answer is yes, but only if we properly diagnose the problem and apply the correct solution.
In a speech in 1982, the late Christian philosopher Francis Schaeffer diagnosed the problem this way:
“Christians, in the last 80 years or so, have only been seeing things as bits and pieces which have gradually begun to trouble them and others, instead of understanding that they are the natural outcome of a change from a Christian World View to a Humanistic one. … We may be troubled with the individual thing, but in reality we are missing the whole thing if we do not see each of these things and many more as only symptoms of the deeper problem. And that is the change … from a Judeo-Christian consensus to a Humanistic one.” (emphasis mine)
Unraveling Bit by Bit
Here are some “bits” that may seem disconnected that we really need to connect. Several decades ago, many in our country were troubled by the no-fault divorce laws that led to the increased unraveling of marriages. But as a society, we moved on. Then we became troubled by same-sex “marriage.” And while many of us are still troubled by it, polls show that society is once again moving on. Now we’re troubled by the transgenderism movement that gives boys permission to shower in the girls’ locker room if they want to. Over the next five to ten years, will society “move on” regarding this issue as it has the others?
The answer, I believe, is yes, unless we realize that this progression is the product of a particular way of viewing the world and that this worldview needs to be replaced.
The Reigning Worldview
The worldview that ties together the changes in marriage policy to the developing changes in locker room policies was recently articulated during the oral arguments on the constitutionality of man-woman marriage. In response to the concerns by her fellow Justices that same-sex “marriage” was too out-of-step with world history, Justice Ginsburg said:
“You [proponents of same-sex “marriage”] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t—wouldn’t fit into what marriage was once.” (emphasis mine)
Here we see Justice Ginsburg applying to marriage the evolutionary rationale employed by Darwin, who said micro changes in plant and animal life justified the assumption that there had been macro changes in those things, that one kind of “thing” had eventually become a completely different kind of thing.
Specifically, Justice Ginsburg was saying that a change regarding how the roles and responsibilities of marriage are allocated between a man and a woman in a marriage—a micro change, if you will—justifies or perhaps is even rooted in a macro change, an equality in biological sex. If this is true, then it is logical for her to treat men and women as interchangeable parts in regard to marriage.
But if men and women are interchangeable parts in regard to something as fundamental to the ordering of society as the institution of marriage, then logically how can they not be interchangeable when it comes to where one showers after gym class?
If Schaeffer correctly diagnosed the problem, and I believe he did, then what can be done? If you ask me, the only institution that can do anything to affect the reigning worldview embraced by our other institutions is the church. And it can do one of two things. It can continue to teach a do’s and don’ts sexual ethic divorced from the context of the larger worldview story revealed in the Bible, or it can begin to systematically teach the biblical worldview that makes the sexual ethic hang together and do the even harder work of equipping its people to engage others at the worldview level.
What it will do I don’t know, but I do believe that if the church continues to choose the former, then everyone can grab their towel and head to the locker room of their choice.
— David Fowler, President, Family Action Council of Tennessee
As I continue to reflect on the oral arguments that were recently made in the Supreme Court regarding marriage, I noticed that one word—an “F” word—was used more times than almost any other word other than the obvious words “people” and “marriage.” And the way it was used makes me think of another “F” word that may turn out to be more fitting.
In case you’re wondering, the “F” word that was used in Court was not the one that gets bleeped by media censors. But in much the same way as that “F” word seems to get thrown around indiscriminately these days without any reflection on its meaning, the same happened with the word I have in mind.
What Is the ‘F’ Word?
That word is “fundamental.” It was used forty times by either the Justices or the lawyers and in the context that marriage is a fundamental right. The most interesting use of the “fundamental” word was by Justice Sotomayor, whose use was similar to that of Justice Breyer. Here is what she said:
“The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right. … The issue is you can’t narrow it down to say, but is gay marriage fundamental? Has black-and-white marriage been treated fundamentally? The issue was starting from the proposition of, is the right to marry fundamental? And then is it compelling for a State to exclude a group of people?”
But Justice Sotomayor’s starting point is wrong, and as a result she will wrongly conclude that same-sex “marriage” is the equivalent of marriage as it’s been understood for “millennia.”
The Wrong Starting Point
The “starting proposition” isn’t that marriage is a fundamental right. She assumes that it’s fundamental. However, neither she nor Justice Breyer ever articulated any basis for why marriage has been treated as a fundamental right in the past.
As I tell those who attend our Stand for Truth Seminar, “Make those who throw around key words explain what they mean by them and defend them.” And, sadly, no one ever made Justice Breyer or Sotomayor do so.
The point is this: You can’t decide if something is “fundamental” until you know what it is. And then you have to decide what it is that makes that thing fundamental. Only then can you determine if some other thing—in this case same-sex relationships—shares in or partakes of that which made the original thing fundamental.
In this case, the “thing” is “marriage,” and until recently it was always made up of a man and a woman. So what about that relationship might have made us think it is fundamental?
What Makes Marriage ‘Fundamental?’
If we’re going to exclude the possibility of a theological answer, then Webster’s Dictionary provides a little logical help to us here. The first and primary definition of the word “fundamental” is this:
a: serving as an original or generating source : primary
b: serving as a basis supporting existence or determining essential structure or function
Let’s not ignore the obvious here, as many of our Justices apparently want to do. What might the relationship between a man and a woman have been “original” in relationship to or what might the relationship between a man and a woman have been a “generating source” of?
How about children? How about the future generation? How about the ongoing existence of the community or state?
Of course, that is what made previous societies and states think marriage was “fundamental.” There was no future society or state without that relationship! In that sense, it was “serving as a basis supporting existence,” as Webster put it.
Same-Sex ‘Marriage’ Cannot be Fundamental
And how does a relationship between two people of the same sex provide “origin” to or become a “generating source” for children and future generations and thereby “support the existence” going forward of community, society, and the state? It doesn’t and can’t except for the intervention of science.
But that intervention itself proves that same-sex “marriage” is not the same kind of thing;
same-sex “marriage” does not share at all in that which is “fundamental” to marriage or, more importantly, that which made marriage “fundamental.” If Justice Kennedy will stop to think about it, that may explain why for “millennia,” as he noted, no one ever thought same-sex “marriage” was fundamental.
So, we can define marriage any way we want, but if we do, it will cease to be something fundamental to anything and will take on the character of another “F” word—fungible. Any relationship among any number and type of people will have to be deemed a marriage if Justice Sotomayor’s thinking prevails.
— David Fowler, President, Family Action Council of Tennessee
As I listened to the oral arguments on the constitutionality of Tennessee’s marriage laws on April 28th, I got frustrated. The Justices who appeared to support same-sex “marriage” couldn’t seem to understand the state’s answers to their questions, and I didn’t understand why. At 4:30 Wednesday morning I got my answer.
In short, the reason was that the Justices were asking the wrong questions. Here’s what I mean.
The Importance of the ‘Right Question’
Phillip Johnson, father of the intelligent design movement, wrote in the introduction of his 2002 book, The Right Questions:
“I have learned that the best way to approach a problem of any kind is usually not to talk or even think very much about the ultimate answer until I have made sure that I am asking all the right questions in the right order. … [W]hen I want to persuade a lecture audience, I must be very careful to ensure that the audience understands the question correctly before I try to supply an answer.”
Ironically, the example he gave of what he meant related to marriage:
“[W]hen law reformers in the 1960’s liberalized the law of divorce, in the process they transformed marriage (at least as it’s understood legally) from a sacred bond to a mere civil contract voidable at the option of either party. Although the reformers did not intend to approve same-sex marriage and probably never conceived of it as a possibility, a sufficiently far-sighted person could have seen that the tracks were headed in that direction.”
And then, to show how astute his powers of observation were, he continued,
“Now that the train has picked up a great deal of momentum, anyone can see that it is headed toward approval of gay marriage. The train will eventually get to that destination whether most people like it or not, unless some very strenuous work is done to move the tracks and point them in a different direction. Trying to stop the train by standing in its path is a good way to get run over.”
This was written two years before Massachusetts became the first state to “legalize” same-sex “marriage”!
The ‘Wrong Questions’ the Justices Asked
Applying the foregoing to Tuesday’s oral arguments, the Justices thought to be leaning toward same-sex “marriage” kept asking the states’ attorneys why their states had defined marriage in such a way as to include only opposite sex persons. Why, they asked, could the state not have defined it to include same-sex couples?
Interestingly, in the same vein, the Justices opposed to making same-sex “marriage” a constitutional right asked the correct countervailing question, namely, what would keep someone from arguing that marriage should include three or more people.
Both sets of questions are good ones, and to be perfectly honest, no one on the opposite side of those questions had authoritatively sufficient answers. But that’s because those weren’t the right first questions.
The Real ‘Right’ Question
The right first question was whether marriage is a name that civil society has given to a unique relationship that is a part of the order or nature of things or whether it is merely a creation of civil society. Putting this question in theological terms, the question would be whether marriage is something created by God (perhaps by nature if you’re an evolutionist) or by man. The answer to that question determines everything.
If God “made up” marriage, then we can no more redefine it than we can change the requirement that a sentence, in order to make sense and not be gibberish, has to have a subject and a verb.
Making the Definition of Marriage Gibberish
Had supporters of gibberish been in the courtroom asking that their “statements” be given the same “dignity” on a high school grammar examination as a complete sentence, no one would have asked the state why it had sanctioned its teachers to only recognize as a proper sentence only those strings of words having a subject and verb and had not accorded to a prepositional phrase the same.
We would all laugh if the Court declared a prepositional phrase the grammatical equivalent of a sentence. But when it comes to marriage, for some reason we think we can declare with a straight face something to be a marriage that is not a marriage.
No Answer to Why or Why Not?
So the whole problem with the oral arguments on Tuesday and the reason I was so uncomfortable with the questions and the answers is that, apart from God, there are no good answers to why marriage should be limited to man and a woman or to why marriage should not include three or four people.
That is not to say that the state can’t have a reason for limiting marriage to a man and a woman, but reasons can be and were given for why it should not be so limited. And there are reasons for why the state should not let three or more people marry, but then again, there are reasons for why it should not be limited to two people, if marriage truly is just, as same-sex “marriage” proponents suggest, a relationship of mutual love and respect, and shared responsibility.
Justice Kennedy rightly realizes that for some reason marriage as a relationship between a man and a woman has been recognized for millennia, and the reason, which he is unwilling to admit, is because marriage is what marriage is. And that is also why, as he noted, societies and cultures have recognized it even when it was not defined by law, per se.
The Haunting Question
Justice Kennedy is on the horns of a dilemma. He knows deep down that there is a truth about marriage, yet because he appears to be willing to deny God’s relevance to matters like this, he is trying to figure out if he can suppress that truth. You might even say he’s facing a crisis of faith, a question that hauntingly comes to every man from the very beginning—“Hath God said?”
It is my hope that Justice Kennedy will choose not to play God, and at least do what Pilate did with Jesus when torn between the people and the law—turn the question over to the people and let us decide the question for ourselves.
Sadly, until marriage supporters are willing to ask society the right first question, that may be the best we can hope for.
— David Fowler, President, Family Action Council of Tennessee
Next Tuesday Tennessee will be in the national spotlight as the office of our state’s Attorney General will be arguing before the U.S. Supreme Court the wisdom of our state’s marriage laws. Over recent months I’ve been asked what I think Christians should do if we “lose.” Well, here are my initial thoughts.
I want my first response to be like that of my namesake, David, the King of Israel, a man after God’s own heart. There was a time when he felt as desperate over a situation in his life as I now feel about marriage and the future of our country.
When informed by the prophet that the son he’d conceived through his adulterous relationship with Bathsheba would die, David lay prostrate on the ground, wept, prayed, and fasted for his child’s life, even to the point that his counselors were afraid of how he would respond once he learned that his child had, indeed, died. But when God’s judgment was complete, this is what we’re told of the King’s response:
“Then David arose from the earth, and washed, and anointed himself, and changed his apparel, and came into the house of the LORD, and worshipped: then he came to his own house; and when he required, they set bread before him, and he did eat” (2 Samuel 12:20).
And that should be my response, too, because, like King David, I will know that God is just as sovereign and just as righteous and true in all His ways as He was the day before, and He is, therefore, just as worthy of my trust, my worship, my service, and my affections as He was the day before.
My second response will be to encourage the Church to make an honest evaluation of the situation, as did Nehemiah, who, after examining the walls of Jerusalem, said to his fellow Israelites:
“You see the distress that we are in, how Jerusalem lies waste, and its gates are burned with fire. Come and let us build the wall of Jerusalem, that we may no longer be a reproach” (Nehemiah 2:17).
You see, in my opinion, the Church needs to realize the distress that it, not just the culture, is in.
I honestly believe the Church is in distress not so much because the culture is falling down around it as it is because the Church’s own walls have fallen down and its gates have been destroyed. The people who most need a “sermon” about the law of God are the people of God.
When Moses charged the people of God with keeping the law of God as they entered the Promised Land, he said this:
“I have taught you statutes and judgments, just as the LORD my God commanded me, that you should act according to them in the land which you go to possess. Therefore be careful to observe them; for this is your wisdom and your understanding in the sight of the peoples who will hear all these statutes, and say, ‘Surely this great nation is a wise and understanding people’” (Deuteronomy 4:5,6).
Notice that what was to commend to the watching world the wisdom of God’s law was the beauty—the shalom—that they observed in the lives of and relationships among those who kept the law of God. It was the fruit of keeping God’s law that would lead others to want to “taste and see that the Lord is good” (Psalm 34:8).
When I read that a few years ago and then considered the rate of divorce and adultery and sexual sin within the Church, I couldn’t help but wonder if we, the people of God, have demonstrated enough beauty in our marriages to commend to the people around us the wisdom of God’s design for marriage. I fear the discussion we’re having in Court on Tuesday would suggest the answer is “No.”
And that leads to my third response. I’ll re-commit myself to making sure my own marriage is worthy of emulation by those who would observe it and encourage other Christians to make sure they do the same. It may not be the quick way forward that some would want, but it just may be the most effective one.
— David Fowler, President, Family Action Council of Tennessee
With oral arguments before the U.S. Supreme Court on the constitutionality of Tennessee’s marriage law less than three weeks away, two recent events should make clear to the Justices two things that for sure they cannot say.
Indiana and the Suspect Class
The first event that the Justices should take note of is the lightning speed at which Indiana’s political leaders did an about-face last week on religious liberty legislation in response to threats of a statewide economic boycott by those who believe sexual acts and gender expression are civil rights.
The reason the Justices should take note of this is that one of the arguments made by proponents of same-sex “marriage” is that laws “limiting” marriage to a man and a woman are unconstitutional, because they are designed to target and withhold political rights and privileges—marriage and its benefits—from a “suspect class” of people, namely, homosexuals.
While it is hard to fathom that anyone would seriously believe that marriage laws, which have existed for hundreds of years, were created to exclude homosexuals from anything, the Supreme Court’s “test” for determining a suspect class makes this argument almost comical.
As the Sixth Circuit Court of Appeals noted in upholding Tennessee’s marriage laws, the Supreme Court has considered “four rough factors in deciding whether to treat a legislative classification as suspect” and legislation negatively affecting the class “presumptively unconstitutional.” One of those factors is whether the asserted class is “politically powerless.”
If the situation in Indiana did nothing else, it proved to the world that those who advocate for the rights of homosexuals are not politically powerless. For the Supreme Court to hold that homosexuals deserve special protection as a suspect class because they are politically powerless would destroy the credibility of the Court.
America Is Ready for Same-Sex ‘Marriage’
A couple of months ago, legal scholars and conservative political commentators were shocked when Justice Ginsburg said that she thought Americans were prepared to accept same-sex “marriage” and that “it would not take a large adjustment” for Americans if the Court ordered same-sex “marriage.”
While Justice Ginsburg apparently does not have the integrity to recuse herself from a decision in which she has expressed her pre-judgment of the case, the second event of which she, along with her fellow Justices, should take note is that twenty-four of the fifty states have just filed briefs with the Court in support of their state’s right to define marriage. That means that some states that have court-imposed same-sex “marriage” are actually fighting for their right as sovereign states to decide their own marriage laws.
Constitutional rights should not float along on the breeze of whatever public opinion might from time to time think about some issue, but, sadly, some Justices on the Court, like Ginsburg, believe that this “breeze” is the breath that makes the Constitution a “living document.” Unfortunately for them, the briefs of these twenty-four states should add an odor to the air she and those on the Court who think like her have been breathing that should make repugnant a belief that America on the whole is ready to adjust to same-sex “marriage.”
While the Justices may well find some constitutional justification for subordinating the sovereignty of the fifty states to their views on homosexuality and marriage, we at least know two justifications that should now be off the table.
— David Fowler, President, Family Action Council of Tennessee