When the U.S. Supreme Court in the Obergefell case decided it could redefine marriage for all the states, it created a mess. Fixing it will take an assist from the states. A decision this week by the same state Supreme Court that first gave us same-sex “marriage” demonstrates the problem. Perhaps Tennessee can help bring about the fix.
In 2003, the Supreme Court of Massachusetts said that the state constitution required same-sex “marriage.” But the state’s Legislature did not revise all the statutes governing family law to reflect this redefinition of marriage. My guess is that no state has changed all its family laws as a result of the U.S. Supreme Court’s Obergefell decision. Tennessee sure hasn’t. And that is what is creating the current mess.
This week the Massachusetts Supreme Court said that a woman was the legal parent of a child her female partner had by artificial insemination. Note: they were not married. The lawyer for the woman not related to the child cited two laws to give herself the legal status of parent (incidentally, the lawyer is Mary Bonauto, who argued for the same-sex couples in Obergefell).
First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus,meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?
Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!
But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”
Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commentedon the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy . . . the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”
In other words, she is saying that the U.S. Supreme Court has put the Tennessee courts (and all state courts, really) in the position of having to rewrite all of their state’s family law under the guise of constitutional “interpretation.” However, if they don’t, if they can resist the judicial activism we saw in Massachusetts this week, then perhaps the U.S. Supreme Court, on appeal from cases like the one in Tennessee, will realize it’s going to have to rewrite all the family law in every state and that doing so will be going too far, destroying the Court’s last vestige of legitimacy.
Hopefully, if confronted with situations like these and the contortions in legal reasoning they will have to engage in to reinterpret every state’s family law, the Supreme Court will realize why our Founding Fathers left family law up to each state and will reverse Obergefell.
For that to happen, some state courts are going to have to force the issue back to the U.S. Supreme Court by refusing to do their dirty work for them, and legislators are going to have to resist the temptation to change the wording in our statutes. Legislators need to leave our laws alone and, looking our state judges in the eye, dare them to reinterpret the plain language of statutes they have passed.
The process starts in Tennessee on October 21st when a Knoxville trial court will decide whether the word “husband” in Tennessee’s insemination statute includes a “lesbian spouse.” Stay tuned. The road to returning marriage back to the states may run through Tennessee.
This week I couldn’t help but think of what Hall of Fame football coach Vince Lombardi once said, “Winners never quit and quitters never win.” It came to mind when I learned a national organization I respect was quitting on the most important issue of our time.
This week I learned that a legal organization I respect and have supported financially was closing its “Marriage and Family” division. They had reached the pragmatic (they would say “prudential”) conclusion that it wasn’t a good use of time to continue the fight for the biblical and historic definition of marriage by seeking ways to get the issue back before the United States Supreme Court.
In my opinion, the Supreme Court’s Obergefell decision is the Dred Scott and Roe v. Wade decision of our generation. Yet going forward this organization is going to defend marriage only in the context of the religious liberty rights of those who have a biblical view of marriage.
I am all for that, but same-sex “marriage” is perhaps the greatest threat to religious liberty and freedom of conscience there is! To concede that Courts can change the millennia-old meaning of marriage is to concede religious liberty in time. Cannot the 200-year-old meaning of “free exercise” in the First Amendment be changed, too? Of course it can.
Sadly, this organization is not alone. Recently, a friend in a meeting hosted by a national organization featuring a number of national players said many spoke as if the U.S. Supreme Court had legally amended state marriage statutes by judicial fiat, changing the words “male and female” in the marriage license statutes to “party 1 and party 2.”
I couldn’t help but think, Can’t we at least talk about the issue in a way that makes sure our folks know that the Court was lawless and that it did what no court has ever attempted to do before? How will we ever get people to rise up and demand judicial reform if they think the courts are doing what they are supposed to be doing?
And, of course, there was no talk of finding a way to attack, undermine, or limit the Obergefell decision. None!
In contrast, in After the Ball—How America Will Conquer Its Fear & Hatred of Gays in the 90’s, Marshall Kirk and Hunter Madsen wrote that the LGBT community had to take on “antigay actions.” The “first class of actions” in which they had to engage was to attack “laws which criminalize the sex acts commonly associated with homosexuality”—state sodomy laws. And they did.
Repealing those laws went quickly in some areas of the country, but then progress began to slow go. So they resorted to their trusted friend, the federal courts, to strike down all the remaining laws at once. In 1986 that tactic hit a roadblock. In Bowers v. Hardwick, the U.S. Supreme Court ruled that state sodomy statutes were not unconstitutional.
But the LGBT community did not quit, like our side is doing with marriage. Instead they turned to state court lawsuits to get the state courts to find the protection for homosexual behavior that Bowers said was not in the U.S. Constitution.
They won multiple times in state court, and then they returned to federal courts with five different lawsuits to raise a narrower issue than a right to homosexual conduct—i.e., the right to equal protection based on the fact that some states only criminalized homosexual sodomy, not heterosexual sodomy.
Lawrence v. Texas in 2003 was the result—all state sodomy laws were declared unconstitutional. Seventeen years of fighting in the courts, and they finally got what they were denied in Bowers! And twelve years later, Lawrence v. Texas became the foundation for Obergefell and same-sex “marriage.”
For what it is worth, the organization I lead is not giving up. We are following the path followed to overturn the sodomy laws. We’ve filed actions in state court and are looking at getting involved in yet another. We are narrowing the scope of the issues, rather than attacking Obergefell head on.
Will we win? I don’t know. But I know Lombardi was right—quitters never win.
—David Fowler, President of FACT
While there are many fine constitutionally sound judges in our country, the judicial system, as a whole, is broken. Last April I predicted that judges who are not very careful in their application of Obergefell’s holdings to Tennessee’s marriage license law were going to open a can of worms. That can was recently ripped wide open in Knoxville.
The Background to the Knoxville Case
To understand what happened in Knoxville, let’s quickly summarize what Obergefell said. Using the power of judicial review, the Obergefell Court said laws that only authorize the issuance of a marriage license to a man and a woman are “invalid.” Not a hard concept to understand. The Obergefell Court also said that same-sex couples have a fundamental right to marry.
But only a few seconds of reflection on those last two statements leads one to the realization that the right to marry requires a statute. There must be a statute to spell out the terms and conditions upon which that marriage can be legalized.
But, you say, we have that statute. No, not if the Obergefell Court meant what it said when it said our basic license law was invalid.
And guess what? Neither Tennessee’s Legislature nor the legislatures of the other 40 states whose laws were ruled invalid have passed any replacement statute.
Weren’t we all taught that courts can’t pass statutes? Of course. It’s called the separation of powers. The power to enact statutes is constitutionally vested only in legislative bodies.
Taking the Court at its word, then, and applying the elementary principle taught in eighth grade civics that courts can’t pass laws, we inexorably come to the conclusion that we have no marriage license law in Tennessee (or in about 40 other states).
Evidence the System Is Broken
But lawyers say to me, “David, your legal theory looks right, the logic is sound, but you know no court is going to rule that way. They are going to figure some way around your legal argument to validate the Supreme Court’s edict.”
They may be right. That’s why I say the system is broken. Lawyers are essentially admitting the Court is lawless.
My Prediction in April
But if the courts want to do that, then they are going to have to deal with what I told them in my brief last April would happen:
The substitution of a new [legislative] intent [regarding the definition of marriage] will then have ripple effects throughout the Tennessee Code relative to statutes involving marital status. The court will be creating for itself the nightmare of trying to figure out how a new judicially super-imposed intention defining marriage is to be applied consistent with the legislature’s intent in other statutes.
For example, T.C.A. § 68-3-306 provides that, “A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.” Did the legislature intend this statute to apply where the marriage was between two women and the child would not have a mother and father? Based on the arguments the state made in Obergefell in support of its constitutional amendment regarding marriage, the legislative policy was to connect a child to a mother and father, but if that type of legislative intent is now unconstitutional, then maybe this statute, too, is unconstitutional. If so, will a future court supply a new legislative intention to that statute, too?
The Hypothetical Proves Prophetic
The very kind of case I predicted would surface actually surfaced in Knoxville a couple of weeks ago. A married lesbian couple sought a divorce. One of the women had conceived a child through artificial insemination. The other spouse not related to the child biologically sought to use the statute as a grounds for legal custody rights.
The Judge upheld the separation of powers between the judicial function and the legislative function and said the statute did not apply to insemination in the case of a lesbian marriage.
Here’s what he said:
When a statute is clear, courts simply apply the plain meaning without complicating the task. In re Baby, 447 S.W.3d 807, 818 (Tenn. 2014). This Court does not read the United States Supreme Court’s opinion in Obergefell135 S. Ct. 2584 … to override this Court’s duty to interpret statutes in a manner that gives effect to their plain meaning.”
Assuming this decision is appealed, what will the appellate court do? Will it follow the law, as the trial judge did, and tell the disappointed litigants they need to seek a legislative remedy, or will it just perpetuate the lawlessness of the Supreme Court by going down the road of re-writing any number of marriage-related statutes to do what they were never intended to do?
This lawsuit, along with the two I’ve filed, have opened the judicial can of worms created by Obergefell. Just as earthworms break down organic matter, this can of worms might finally lead to the complete breakdown of the judiciary if courts blindly follow the lawless lead of the Supreme Court. If so, then we finally might see a move toward the judicial reform we so desperately need.
—David Fowler, President of FACT
When the Supreme Court ruled on same-sex “marriage,” it didn’t just change the definition of marriage. Its decision is more insidious than most people realize. It will change more than just the obvious. It will now complete a definitional change in other societal building blocks and perhaps another new constitutional right.
Most people with whom I speak understand that the Supreme Court’s ruling will impact religious liberty and what is taught in public schools. It may well impact the tax-exempt status of churches and religious organizations and the accreditation of religious schools and colleges. But here are two things percolating below the surface that will most likely change the nature of the family itself if steps are not taken by our legislature in January to address them.
Who Is a Parent?
The Court’s ruling has put into question all the laws in Tennessee that govern the relationship between parent and child. Who qualifies as a “parent” can become very important when, for example, a teacher, physician, or government official (for example a Department of Children’s Services social worker or a Juvenile Court Judge) is dealing with a child. Who is the parent to whom rights are owed and to whom that government official owes certain duties?
Before the Supreme Court imposed its view of marriage on the states, the law of parentage has always presumed that a married man is the father of the child his wife bears. The presumption was in accord with nature’s means of procreation and the nature of the marital relationship. But now we have so-called marriages that are, by definition, sterile.
Consider the issue intentionally sterile marriages now raise. One of the women in the lesbian “marriage” gets impregnated through sperm donation. Should courts just assume that the other spouse with whom she has no genetic connection be considered a parent? The same holds for two men who use the rent-a-womb approach to have their child (called surrogacy in polite circles). Is the male spouse who does not contribute the sperm going to be considered the legal parent?
Let’s complicate it just a bit by assuming that the child is actually the product of a previous heterosexual marriage. Dad has divorced mom to marry Fred. As a spouse, does Fred, as the marital spouse of the biological father, have any rights to adopt, meaning the child would then have three legal “parents?”
As Tennessee’s courts address these issues (and the legislature may need to address some of them), I hope they will agree with what a Justice in Louisiana just said in a parent-child case there:
“While the majority opinion of Justice Kennedy [in the marriage case] leaves it to the various courts and agencies to hash out these issues, I do not concede the reinterpretation of every statute premised upon traditional marriage.”
Constitutional Right to Assisted Reproduction?
The second thing the Court’s ruling did, and related to the first, is it may have laid the groundwork for a constitutional right to third party reproductive assistance.
While various assisted reproductive technologies have already been used to create families where none was biologically possible, the “constitutional right” to same-sex “marriage” takes the issue of access to those technologies to another level.
As is obvious, two people of the same sex cannot procreate. The genetic material of a third person is necessarily required, a third person that will most often not be a “parent” to the child.
This raises the question of whether a child has a right to know or have at least certain information concerning both of his or her biological parents. If so, and if the state puts any limits on the rent-a-womb approach to child-bearing or in any other way “crimps the style” of sterile married couples to have children, you can expect them to argue that those laws violated some new-fangled “right to procreate” unnaturally.
After all, the Supreme Court has in previous cases spoken in the past about “procreational autonomy.” Of course, the Court always did so in the context of heterosexual sexual relations, but it always spoke of marriage in the past in terms of heterosexual relationships, too. That didn’t stop it from redefining marriage. So what will stop it from redefining “procreation?”
As we all fuss and fume about what to do to restore a right understanding of marriage and to protect religious liberty, I hope we won’t forget about these other issues. How our state handles these issues may be just as important as how it handles the issue of marriage.
— David Fowler, President of FACT
As we approach the first “anniversary” of the U.S. Supreme Court’s Obergefell decision on marriage on June 26, I recalled what a wise friend of mine said a couple of years ago—Christians have approached the question of marriage and its meaning and definition like it was a debate when perhaps we should have approached it more like a beauty contest. His comment stuck with me. Something I experienced Monday and a news story yesterday helped me better understand his observation.
Before I get to my personal story and the news, we need to appreciate why his comment has merit. There is a philosophic and historical aspect to his cultural observation that Christians (and conservatives in general) need to appreciate. There was a time when reason and logic ruled the mind, called the Age of Enlightenment. But that way of looking at life seemed, to many, to leave no place for emotion, feeling, and beauty, so what’s known as Romanticism emerged. Consequently, how one feels about what he or she sees or experiences determines the truth about it, its worth, and its value. That worldview seems to have won the day.
If that’s the case, then examples of beautiful marriages between a man and a woman and the natural fruit thereof may be more captivating to the modern mind than logical arguments about the complementariness of the two sexes, the procreative realities inherent in male-female marriage, and the need for connecting children to their biological parents. That brings me to my personal experience and yesterday’s news story.
At a time when some are now arguing for wed-leases (yes, a marriage license would be a commitment for a defined period that could be ended or renewed) because they see marriage not working for the long haul, my wife and I celebrated our 35th wedding anniversary on Monday.
I’m not bragging about it, and I know that, left unattended, my own marriage could still unravel, but as I reflected back on our 35 years, having just reflected on being a father the day before, I realized what a beautiful journey marriage is.
However, there have been plenty of hard moments, too personal to share in a forum like this. As much as I’d like to say I wish there had not been such moments, the fact is that, having hung in there, they have refined and enlarged us as persons and as spouses. They are a part of what makes me value and treasure my wife and our marriage.
While there are some marriages in which personal safety calls for drastic action, the fact is that the person who perseveres with you during the intimate, intensely personal storms that marital life brings becomes the one you cherish most, the one whose hand you still thrill to hold simply because it means they are there and you know that when they are not there, a part of you is missing.
Then I had breakfast on Wednesday with a friend whose parents were about to celebrate their 74th wedding anniversary, and Thursday morning I read about President and Mrs. Carter celebrating 70 years of marriage. I also learned that President and Mrs. Bush celebrated 71 years of marriage earlier this year. Amazing!
Those of us who want to “defend” marriage need to do more to honor and recognize good marriages that can inspire those who are ready to give up on the idea of marriage or maybe their own marriage. Doing so is part of what the author of Hebrews meant when he wrote, “Marriage is to be held in honor among all” (13:4). It’s the reason I chose this topic for today.
So, as we approach the “anniversary” of the Obergefell decision purporting to redefine marriage, I guess my point is this: If Christians want to win the “marriage debate,” then we need to settle in for the long haul and demonstrate to a watching world the beauty of marriage.
That will take more work on our part, as our current track record on divorce makes amply clear. But if we’ll recommit ourselves to God’s design and intention for marriage, then, we can eventually win the debate.
Despite what some folks want us to believe, God—not the U.S. Supreme Court—will decide when the debate is over. It’s not over yet.
—David Fowler, President of FACT
The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.
The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.
And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.
The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”
This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.
A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.
So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.
Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.
Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?
Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1
So here is what the U.S. Supreme Court said in Obergefell:
“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”
To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.
But the Obergefell Court also said this:
“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”
Notice that both of these sentences represent the “holding” of the Obergefell court.
So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?
Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?
Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”
Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.
That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.
Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.
- Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.
— David Fowler, President of FACT
In recent weeks, many have asked me if it is legally, constitutionally, and historically appropriate to resist the Supreme Court’s same-sex “marriage” ruling. The clear answer is “yes,” and here is at least one answer that meets all three of those criteria—legal, constitutional, and historical.
The appropriateness of Americans resisting the Supreme Court’s ruling in Obergefell v. Hodges is based, in part, on what Abraham Lincoln said after the Supreme Court’s Dred Scott decision. He said that when a Supreme Court decision (1) does not “accord both with common sense, and the customary understanding of the legal profession,” (2) has not “been made by the unanimous concurrence of the judges, (3) does not have “any apparent partisan bias, (4) is not “in accordance with legal public expectation,”(5) is not “in accordance . . . with the steady practice of the departments throughout our history,” and (6) is not “based on assumed historical facts which are not really true,” then that decision may be considered settled and resistance to it “factious” only if it has “been affirmed and re-affirmed through a course of years.”
Application of that test to Obergefell leads to only one conclusion, namely, that Obergefell is not “settled,” should be given little to no precedential value, and can be constitutionally resisted.
Lincoln’s test may first be applied to the Obergefell decision as follows:
- Same-sex “marriage” is not in accord with common sense and not in accord with the “customary understanding” of marriage in the legal profession.
- It was not only not unanimous, but it provoked four of the most strongly worded dissents in the history of the Court.
- Justice Ginsburg showed bias prior to oral arguments in Obergefell. She reflected in her statement that the public seemed ready to accept same-sex “marriage” and referred to constitutional rights in connection with a same-sex “marriage” she officiated.
- It was not in accordance with the legal expectation of the states but, to the contrary, the expectation of people of the states was that marriage should remain a relationship between a man and woman as evidenced by the passage of thirty-one state constitutional marriage amendments.
- The recognition of same-sex “marriage” has not been the “steady practice . . . throughout our history,” since the first legal same-sex “marriage” in America wasn’t “authorized” by a state court until 2004.
- It was based on a wrong understanding of the historical facts regarding the nature of marriage, extrapolating from matters like the abolition of coverture that the fundamental nature of marriage as a man and a woman had somehow also evolved.
Since Obergefell fails the first part of Lincoln’s test, it can be considered “settled” law deserving of deference only if the Court’s authority over the states to define marriage has been “affirmed and reaffirmed through a course of years.” This has not been done in regard to a number of issues, including the constitutionality of the Court’s authority to affirmatively dictate to states a law that they must enact.
If Lincoln’s statement reflects an appropriate, historical test for evaluating whether the exercise of authority by the Supreme Court is to be accepted by other branches of civil government or by the states, which a number of constitutional experts believe it does, then Obergefell v. Hodges is not “settled law.”
Thus, it is certainly more than appropriate for citizens and the states to resist the Court’s ruling by appropriate means. Stay tuned for more on what that looks like.
—David Fowler, President of FACT
At first blush, it would seem that fiscal conservatives who hate things like Obamacare would be uninterested in the Supreme Court’s ruling in June on gay “marriage.” But the same judicial philosophy that gave us gay “marriage” kept Obamacare alive. Consequently, no one’s liberties are safe from this Court. No one’s.
To understand why the judicial philosophy undergirding the gay “marriage” ruling, Obergefell v. Hodges, is the same as the SCOTUScare ruling, King v. Burwell, you need to understand what the Court did in King.
The Legal Issue in King
In King, the issue was whether government insurance premium subsidies were only available for polices purchased on insurance exchanges “established by a state.” The reference to “state” exchanges occurred upwards of seventeen times in the statutory language of Obamacare.
As you know, this was a problem since few states established exchanges; most were established by the federal government.
The Practical Problem in King
This was a problem because the Court knew that if the subsidies could not also be given for policies on federal, government-established exchanges, then Obamacare would collapse as a practical matter. The premiums would not longer be affordable for the majority of policies being bought through state and federal exchanges.
So, effectively the Court “interpreted” the statutory words “established by the state” to mean “established by the state or the Federal Government.” That’s exactly what Justice Scalia said in his dissent, “The court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government’ … .”
What the King Court Really Did
What the Court did was effectively legislatively enact a statutory amendment to Obamacare. Passing laws and amending laws is not the function of the Court.
But, liberals say, “Obamacare would have collapsed. What was the Court supposed to do?” Again, Scalia gave the answer, “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state exchanges.” Of course, Congress might not have re-enacted Obamacare, but that is a political question and should be of no concern to the judiciary.
Letting the Court judge and the legislature legislate is the complementary work of governing envisioned in our Constitution. It is nothing strange or new. Every year as a state Senator, I voted on laws amending existing laws to “fix” something that in our limited foresight we didn’t anticipate. Congress, not the judiciary, should have amended Obamacare.
The Obamacare and Gay ‘Marriage’ Judicial Philosophy Are the Same
But here is where the Court’s judicial philosophy is the same as under Obergefell. In both cases, the Court was acting as a legislative body. In King the majority amended a statute to say what it didn’t say, and in Obergefell they expect states to treat their marriage statutes as if the Court had amended them to say “two people” can marry instead of “one man and one woman.”
Violating Basic Principles of Government
Our Founding Fathers were very clear regarding the limited nature of the Court’s power. Federalist Paper 78 says that the Court has “neither Force nor Will, but merely judgment.”
In other words, the Court can judge whether a law is constitutional, and it can judge the meaning of the actual words in law, but it can’t exercise the political “force” nor “will” to write a law or to amend a law by interpreting it to add words that aren’t there. When the Court does this, it should scare all of us.
Why This Is Scary for All
We are warned in Federalist Paper 78, “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.” This is true because when words no longer have any meaning, as they apparently did not in King, then the words of statutes and the Constitution will morph into whatever five unelected, unrepresentative lawyers on the Supreme Court say it is. Representative government of and by and for the people is dead!
What Can Tennesseans Do?
Since Congress has chosen to abdicate its responsibilities under the Constitution to reign in the Court, it will be up to the states to do so. While Congress chose to do nothing to keep the Court from amending its Obamacare statute, Tennesseans can insist that its legislature not be so spineless. We can insist that Tennessee show Congress how to have a backbone by reminding the Court that only our state legislature can amend Tennessee’s marriage statutes. If you want to encourage them to do that, then go to Reclaiming Our Liberty to find out what you can do.
— David Fowler, President of FACT
I recently attended meetings in Washington, D.C. that focused on state-based responses to the Supreme Court’s Obergefell same-sex “marriage” decision in June. To be honest, I was not happy. It seems we’ve not learned from past mistakes.
The general sense of those present was that marriage had lost, that the proverbial “fat lady” had sung. We now just needed to move on and protect religious liberty from the assaults that are sure to come.
I certainly agree that assaults on religious liberty are coming and that we should do everything as a state to protect against those assaults. But, to me, at least in Tennessee, that is the wrong first priority. The first priority is to find a way to challenge the legitimacy of the Supreme Court’s ruling.
That is why I was so glad this week to read that a number of constitutional scholars have proposed doing just that. Their “Statement Calling for Constitutional Resistance to Obergefell v. Hodges” reflects a right understanding of the Constitution, history, and how the give and take of the legal-judicial process is supposed to work.
If you got the typical pabulum-based civic education offered in most of our schools since the 1960s, I strongly suggest you read it and pass it on to your friends. Be one of the sparks that starts the much-needed second American Revolution as you help educate your friends!
This new “American Revolution” is needed, because statutes protecting religious liberty, as good as they are, are short-term solutions to a long-term problem that we’ve failed to address. Religious liberty statutes, which our organization has helped pass, are good only as long as there are not enough hostile votes to repeal them or to make them useless.
What happened in Indiana this spring is Exhibit A.
Indiana passed a Religious Freedom Restoration Act to protect those who carry their religious convictions with them into the marketplace. But when gay-rights activists got upset, Indiana “fixed” the offense it had caused this constituency by amending the law to expressly prohibit those religious liberty protections from applying to wedding vendors like florists and cake bakers!
Good religious liberty-protecting statutes will offer some temporary protection, but they fail to get at the root of the problem, an out-of-control Supreme Court that has, by its ruling, not just turned the Constitution and federalism inside out and upside down, but has exalted itself above God by declaring what He says is not a marriage to be a marriage.1
But setting aside the theological issue of the Supreme Court’s exaltation of itself vis-à-vis God, it has also exalted itself over the people who comprise the states, which, in turn, created the Constitution from which the Court draws its powers. The Court has exalted itself over its “creators,” and it began this current journey back in 1965. And we did nothing about it.
In 1965, the Supreme Court in the case of Griswold v. Connecticut found a “right of privacy,” which it then applied to strike down certain state laws regulating contraception that, in its opinion, cramped sexual liberty. The Court followed it up with a corollary decision in 1972, Eisenstadt v. Baird, again dealing with contraceptives. In 1973, those two cases led to the abortion decision, Roe v. Wade.
In response to Roe, well meaning Christians and conservatives fought the “symptom” of Roe—abortion—and ignored the Supreme Court’s overreach of the Tenth Amendment in Griswold and Eisenstadt. Having failed to do that, we now have same-sex “marriage.”
Here is what Justice Roberts said in his dissent in Obergefell about its connection to Griswold:
“The majority suggests that ‘there are other, more instructive precedents’ informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental ‘right of privacy.’ Griswold, 381 U.S., at 486.”
In other words, Justice Roberts is pointing out that the current Supreme Court used Griswold to help it find a right to same-sex “marriage”!
So, in response to Obergefell, I have to ask myself, our state legislators, the members of Tennessee’s Congressional delegation, and you, “Will we learn from our failure in the 1960s to address the real problem—an overreaching Supreme Court—or will we just retreat to addressing symptoms, like future attacks on religious liberty?”
I, for one, am ready to get to the root of the problem. And if you agree, let me know and share this with your friends. It’s time “we the people” of the sovereign states say to the Supreme Court, “Enough!”
1. Letting the Supreme Court do that is not acceptable to those who take seriously the exhortation by the Apostle Paul in 2 Corinthians 10:5 that Christians should be “casting down arguments and every high thing that exalts itself against the knowledge of God, [and] bringing every thought into captivity to the obedience of Christ” (NKJV).
— David Fowler, President of FACT
Kentucky’s Kim Davis has disrobed the five members of our Supreme Court, exposing the lawlessness of its decision that state laws conforming to natural marriage were unconstitutional. Let’s hope our state legislatures don’t become complicit in the Court’s lawlessness.
Most news stories so far have focused on the religious liberty issue Ms. Davis raised when she said that she could not issue a marriage license to couples of the same sex because in doing so she would be violating the higher law of God which says marriage is only between a man and a woman.
What Law Is Ms. Davis Violating?
But Ms. Davis’ refusal to issue a license raises a very practical legal problem as well, namely, what law authorizes her to issue a license to two people of the same sex? Clearly, Ms. Davis has no inherent authority to decide who she can and cannot issue a marriage license to.
To understand the practical problem Ms. Davis’ refusal creates, we need to appreciate that there are two kinds of statutory laws, positive and negative. The first, “positive laws,” direct someone to do something. The second, “negative laws,” forbid someone from doing something. This limitation on the types of laws presents a problem for Supreme Court Justices who want to require someone to do something the law doesn’t authorize them to do.
For example, if the law requires a clerk to issue a marriage license to two people of the opposite sex, and the clerk refuses, then the Court, exercising judgment, can direct the clerk to follow the positive law.
And the opposite is also true. The law prohibits incestuous marriage. If a clerk begins to issue licenses to mothers and her children, the Court, exercising judgment, can direct the clerk to stop violating the negative law.
But in the marriage case, we have a positive law directing Ms. Davis to issue a marriage license to two people if they are of the opposite sex. The Supreme Court, exercising judgment, could direct her to issue those licenses if she refuses to follow the law. Likewise, the Supreme Court could direct her not to issue licenses to those in an incestuous relationship if she was violating that law.
But what law is there that the Court can direct her to follow or prohibit her from violating when it comes to same-sex couples? There isn’t one!1
Does the Supreme Court Judge the Law or Make the Law?
Some would say she has to comply with the Supreme Court’s order, but that’s the problem. A court, by definition, can only exercise what our Founding Fathers called “judgment.” It cannot exercise what they called “will,” by which they meant that it could not make law.
So, the Supreme Court has created a problem. The five black robed legislator-jurists did not say it was unconstitutional for a clerk to issue a marriage license to two people of the opposite sex. That law is still good. But the Court can’t “pass” a law that authorizes a clerk to issue licenses to two people of the same sex (or three or four people, for that matter—this issue will come up again!).
It seems to me that Kim Davis’ best legal argument is that there is no law for her to follow, to apply, that would authorize her to issue a license to two people of the same sex, and the legislature has not passed a new law authorizing her to do so.
So, when asked by the press by what authority she is refusing to issue marriage licenses to same-sex couples, she should ask her inquisitors by what statutory authority she is supposed to issue them licenses.
Will Legislators Do the Supreme Court’s Dirty Work?
That argument, as opposed to the religious liberty one, raises a very interesting legal question if the Kentucky legislature never passes a law that essentially codifies what the Supreme Court said. If legislatures do enact those laws, then they will have been suckered into doing for the Supreme Court that which it had no power to do—pass a law.
I have a feeling a showdown is coming if Ms. Davis holds the line and Kentucky (and hopefully Tennessee) doesn’t do the Supreme Court’s legislative work for them.
In sum, I thank you, Ms. Davis, for helping us see that the only truly lawless folks in America in relation to the same-sex marriage issue are Justices Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer. You’ve helped us see that they are not wearing judicial robes, just suits like those worn by every other politician.
1Some will say Ms. Davis is violating the “negative” law that banned same-sex “marriages,” but there was no law banning such marriages, like there is a law banning incestuous marriages. That is why you never heard me refer to our law defining marriage as a “ban” on anything. If our law was a “ban” on same-sex “marriage,” then it arguably was a ban on anything and everything someone might dream up and want to call a marriage, not just same-sex “marriages”! The press (and, unfortunately, many conservatives), in referring to our marriage law as a ban, helped create this confusion. Words matter!
— David Fowler, President of FACT