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
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
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
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
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