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
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
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
I have never written on the Second Amendment, because it is just not a focus of the organization I lead. Conversely, Second Amendment organizations never talk about social issues, like same-sex “marriage.” But for those who love guns and also love the Tenth Amendment, the Obergefell same-sex “marriage” case may have just put you on the horns of a dilemma.
Will the Second Amendment Be Trumped or Limited?
The Obergefell case should concern gun rights advocates because of the evolutionary view of constitutional law it embraces. It created a new right not found in the text of the Constitution—same-sex “marriage” grounded in an implied constitutional right to sexual autonomy—and has set it on an inevitable collision course with an express constitutional right to the free exercise of religion. The current constitutional trajectory is toward religious liberty being limited by sexual liberty.
By analogy, Second Amendment supporters have to wonder what new right might liberals come up with, not in the text of the Constitution, and pit against the express constitutional right to bear arms? Or better yet, if the words “liberty” and “due process” in the Fourteenth Amendment can be morphed into the right to marry someone of the same sex, what meaning might the court infuse into the “right to keep and bear arms”?
For example, some, including President Obama, are now morphing the words “free exercise of religion” into the expression “freedom to worship.” And courts are increasingly saying that religion is what you do in the privacy of your home and something you give up when you enter into the stream of commerce as a member of the state.
So what is to keep the Court from someday saying that the “right to keep and bear arms” was only intended to protect one’s “liberty” in the context of home invasions and that people have a right not to have their life or liberty threatened by people who carry guns in public?
If that makes you laugh, I can direct you to some preachers who probably laughed eleven years ago when somebody suggested that the Massachusetts same-sex “marriage” case might lead to a restriction of the First Amendment’s free exercise clause.
With the stroke of the Supreme Court’s pen, it could be “bang!” the NRA is dead.
Will the Second Amendment Trump the Tenth?
As with same-sex “marriage,” the U.S. Supreme Court is driving the constitutional evolution by which the Second Amendment is beginning to trump the Tenth Amendment. In 2010, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right applied to invalidate laws enacted the states (or their political subdivisions, cities). Until then, the limitation on restricting gun rights was confined to laws enacted by the federal government.
For many, this latter statement will seem shocking, but that was true with respect to all the rights enumerated in the Bill of Rights. None of those rights were protected from laws enacted by states until after adoption of the Fourteenth Amendment. For example, since 1870, Section 26 of Article One of the Tennessee Constitution has read:
Section 26. That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. (emphasis supplied)
Arguably, in 2010 the Supreme Court trumped that provision of our state constitution, though I don’t recall legislators or citizens being as mad about that violation of state’s rights as they have been about marriage.1
Anyway, some Second Amendment supporters may now take the next step by trying to apply the following logic from Obergefell to the issue of gun carry permits: If an un-enumerated right to same-sex “marriage” can require one state to accept another state’s marriage license, cannot a restrictive gun rights state be required to accept another state’s carry permits, at least for limited periods of time such as trips and vacations?
I realize that other constitutional arguments can be made to reach this same result, but Obergefell certainly opens the door to the argument that a constitutional right trumps a state’s rights relative to the same subject. And if the NRA can walk through that door, and with the Supreme Court’s power to make up new rights, then expect others to try the same door until the Tenth Amendment has more holes in it than a target at the local shooting range.
1 To those who will misread that comment as anti-Second Amendment, let me be clear: to say that a state can regulate the wearing of firearms as a right under the original Tenth Amendment, which Tennessee’s voters chose to do in their constitution, is not the same as saying the state should actually exercise that power in any particular way. If conservatives were consistent and didn’t like that kind of provision in a state constitution, then they could have offered an amendment to change the state constitution rather than have the Supreme Court do the work for them. Ironically, years ago, when, as a state Senator having taken an oath to uphold the state constitution, I mentioned Article 26 in a gun rights survey, I got downgraded as a candidate.
— David Fowler, President of FACT
Today I was stopped dead in my tracks over yet one more consequence of the Supreme Court’s ruling on marriage in Obergefell. What stopped me was the fact that it had nothing do to with marriage. Instead, the marriage decision just might result in one of Tennessee’s pro-life laws being ruled unconstitutional.
The pro-life law in question is the prohibition in Tennessee of physician-assisted suicide. The constitutionality of that law is now being challenged in a Davidson County Chancery Court. Oral arguments were recently made and briefs are being filed. The brief I was reading cited the Obergefell opinion as authority for the proposition that there is a constitutional right to physician-assisted suicide (PAS).
If you’re like I was when I read that, you’re thinking, “What does a constitutional right to same-sex “marriage” have to do with whether Tennessee’s law on physician-assisted suicide is unconstitutional? How does a constitutional right to same-sex “marriage” give rise to a constitutional right to die?” Great question. Let me answer that.
Didn’t the Supreme Court Already Reject This Right?
In a 1997 case, the United States Supreme Court ruled in Washington v. Glucksberg that there was no constitutional right to physician-assisted suicide. So, you say, “Shouldn’t that settle the issue, then?”
You might think so, but remember that in the 1972 case of Baker v. Nelson, the Supreme Court said that a lawsuit for same-sex “marriage” didn’t even present a “federal question,” let alone give rise to a constitutional right. Forty-three years later, the Court said the Constitution evolved while we were sleeping and that same-sex “marriage” was a constitutional right.
If Baker didn’t “bind” the Supreme Court on the issue of marriage, there is no reason to think it will be bound by Glucksberg either. In fact, the reason the physician-assisted suicide proponents cited Obergefell is because it effectively overruled the reasoning in Glucksberg.
How Obergefell Changed the Constitution on PAS
Here is a very shorthand way of explaining what I mean. Glucksberg said that new constitutional rights must be somehow firmly rooted in our history before the Supreme Court will recognize them. Assisted suicide was not firmly rooted in our history, and so Glucksberg said there was no constitutional right to it.
But that “history thing” set up a barrier to the current Supreme Court “finding” a new constitutional right to same-sex “marriage.” After all, same-sex “marriage” was not firmly rooted in our history.
Thus, the Obergefell Court had to scrap the Glucksberg notion that rights had to be tied to history, and so they did. In its discussion of Glucksberg, this is what the Obergefell Court said about the “restriction” on new rights:
“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
In other words, the “past”—meaning history—doesn’t matter. That’s why Justice Roberts said in his dissenting opinion in Obergefell that “the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process.”
There you have it. The barrier that might have existed to prevent a court from now finding a constitutional right to physician-assisted suicide no longer remains!
Were the Disabled Wasting Their Breath?
Last month I listened with great interest to the impassioned speeches of advocates for the physically and mentally disabled against a bill that would repeal our law against physician-assisted suicide. They explained and offered examples showing how easy it would be for them to become victims in a culture that condoned physician-assisted suicide.
Like those who may feel like we wasted our breath defending marriage in our state’s laws, they may find themselves feeling the same way when the courts finish with this lawsuit. The law that protects them may also prove, by judicial magic, to be unconstitutional.
Did Only Marriage ‘Die’?
I hope this helps more of us see that what Justice Scalia said in his dissent is really true, namely, that as bad as the marriage “result” was, even worse was the rationale of the majority. Our cultural understanding of marriage may not prove to be the only thing that died in June.
The Court’s rationale made our ability to govern ourselves and exist as a nation of sovereign states subject to the whims of this unelected “committee of nine lawyers” we call the Supreme Court. Self-government, state’s rights, and the Tenth Amendment may have died, too. They were, for sure, put on life support.
But that’s not all that may have died. If the Court overrules our laws against physician-assisted suicide, it may just be your right to live that gets overruled if someday you get too old, too costly, or too infirm.
—David Fowler, President of FACT