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
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
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