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
The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.
The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.
And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.
The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”
This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.
A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.
So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.
Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.
Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?
Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1
So here is what the U.S. Supreme Court said in Obergefell:
“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”
To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.
But the Obergefell Court also said this:
“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”
Notice that both of these sentences represent the “holding” of the Obergefell court.
So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?
Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?
Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”
Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.
That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.
Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.
- Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.
— David Fowler, President of FACT
In recent weeks, many have asked me if it is legally, constitutionally, and historically appropriate to resist the Supreme Court’s same-sex “marriage” ruling. The clear answer is “yes,” and here is at least one answer that meets all three of those criteria—legal, constitutional, and historical.
The appropriateness of Americans resisting the Supreme Court’s ruling in Obergefell v. Hodges is based, in part, on what Abraham Lincoln said after the Supreme Court’s Dred Scott decision. He said that when a Supreme Court decision (1) does not “accord both with common sense, and the customary understanding of the legal profession,” (2) has not “been made by the unanimous concurrence of the judges, (3) does not have “any apparent partisan bias, (4) is not “in accordance with legal public expectation,”(5) is not “in accordance . . . with the steady practice of the departments throughout our history,” and (6) is not “based on assumed historical facts which are not really true,” then that decision may be considered settled and resistance to it “factious” only if it has “been affirmed and re-affirmed through a course of years.”
Application of that test to Obergefell leads to only one conclusion, namely, that Obergefell is not “settled,” should be given little to no precedential value, and can be constitutionally resisted.
Lincoln’s test may first be applied to the Obergefell decision as follows:
- Same-sex “marriage” is not in accord with common sense and not in accord with the “customary understanding” of marriage in the legal profession.
- It was not only not unanimous, but it provoked four of the most strongly worded dissents in the history of the Court.
- Justice Ginsburg showed bias prior to oral arguments in Obergefell. She reflected in her statement that the public seemed ready to accept same-sex “marriage” and referred to constitutional rights in connection with a same-sex “marriage” she officiated.
- It was not in accordance with the legal expectation of the states but, to the contrary, the expectation of people of the states was that marriage should remain a relationship between a man and woman as evidenced by the passage of thirty-one state constitutional marriage amendments.
- The recognition of same-sex “marriage” has not been the “steady practice . . . throughout our history,” since the first legal same-sex “marriage” in America wasn’t “authorized” by a state court until 2004.
- It was based on a wrong understanding of the historical facts regarding the nature of marriage, extrapolating from matters like the abolition of coverture that the fundamental nature of marriage as a man and a woman had somehow also evolved.
Since Obergefell fails the first part of Lincoln’s test, it can be considered “settled” law deserving of deference only if the Court’s authority over the states to define marriage has been “affirmed and reaffirmed through a course of years.” This has not been done in regard to a number of issues, including the constitutionality of the Court’s authority to affirmatively dictate to states a law that they must enact.
If Lincoln’s statement reflects an appropriate, historical test for evaluating whether the exercise of authority by the Supreme Court is to be accepted by other branches of civil government or by the states, which a number of constitutional experts believe it does, then Obergefell v. Hodges is not “settled law.”
Thus, it is certainly more than appropriate for citizens and the states to resist the Court’s ruling by appropriate means. Stay tuned for more on what that looks like.
—David Fowler, President of FACT
I recently attended meetings in Washington, D.C. that focused on state-based responses to the Supreme Court’s Obergefell same-sex “marriage” decision in June. To be honest, I was not happy. It seems we’ve not learned from past mistakes.
The general sense of those present was that marriage had lost, that the proverbial “fat lady” had sung. We now just needed to move on and protect religious liberty from the assaults that are sure to come.
I certainly agree that assaults on religious liberty are coming and that we should do everything as a state to protect against those assaults. But, to me, at least in Tennessee, that is the wrong first priority. The first priority is to find a way to challenge the legitimacy of the Supreme Court’s ruling.
That is why I was so glad this week to read that a number of constitutional scholars have proposed doing just that. Their “Statement Calling for Constitutional Resistance to Obergefell v. Hodges” reflects a right understanding of the Constitution, history, and how the give and take of the legal-judicial process is supposed to work.
If you got the typical pabulum-based civic education offered in most of our schools since the 1960s, I strongly suggest you read it and pass it on to your friends. Be one of the sparks that starts the much-needed second American Revolution as you help educate your friends!
This new “American Revolution” is needed, because statutes protecting religious liberty, as good as they are, are short-term solutions to a long-term problem that we’ve failed to address. Religious liberty statutes, which our organization has helped pass, are good only as long as there are not enough hostile votes to repeal them or to make them useless.
What happened in Indiana this spring is Exhibit A.
Indiana passed a Religious Freedom Restoration Act to protect those who carry their religious convictions with them into the marketplace. But when gay-rights activists got upset, Indiana “fixed” the offense it had caused this constituency by amending the law to expressly prohibit those religious liberty protections from applying to wedding vendors like florists and cake bakers!
Good religious liberty-protecting statutes will offer some temporary protection, but they fail to get at the root of the problem, an out-of-control Supreme Court that has, by its ruling, not just turned the Constitution and federalism inside out and upside down, but has exalted itself above God by declaring what He says is not a marriage to be a marriage.1
But setting aside the theological issue of the Supreme Court’s exaltation of itself vis-à-vis God, it has also exalted itself over the people who comprise the states, which, in turn, created the Constitution from which the Court draws its powers. The Court has exalted itself over its “creators,” and it began this current journey back in 1965. And we did nothing about it.
In 1965, the Supreme Court in the case of Griswold v. Connecticut found a “right of privacy,” which it then applied to strike down certain state laws regulating contraception that, in its opinion, cramped sexual liberty. The Court followed it up with a corollary decision in 1972, Eisenstadt v. Baird, again dealing with contraceptives. In 1973, those two cases led to the abortion decision, Roe v. Wade.
In response to Roe, well meaning Christians and conservatives fought the “symptom” of Roe—abortion—and ignored the Supreme Court’s overreach of the Tenth Amendment in Griswold and Eisenstadt. Having failed to do that, we now have same-sex “marriage.”
Here is what Justice Roberts said in his dissent in Obergefell about its connection to Griswold:
“The majority suggests that ‘there are other, more instructive precedents’ informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental ‘right of privacy.’ Griswold, 381 U.S., at 486.”
In other words, Justice Roberts is pointing out that the current Supreme Court used Griswold to help it find a right to same-sex “marriage”!
So, in response to Obergefell, I have to ask myself, our state legislators, the members of Tennessee’s Congressional delegation, and you, “Will we learn from our failure in the 1960s to address the real problem—an overreaching Supreme Court—or will we just retreat to addressing symptoms, like future attacks on religious liberty?”
I, for one, am ready to get to the root of the problem. And if you agree, let me know and share this with your friends. It’s time “we the people” of the sovereign states say to the Supreme Court, “Enough!”
1. Letting the Supreme Court do that is not acceptable to those who take seriously the exhortation by the Apostle Paul in 2 Corinthians 10:5 that Christians should be “casting down arguments and every high thing that exalts itself against the knowledge of God, [and] bringing every thought into captivity to the obedience of Christ” (NKJV).
— David Fowler, President of FACT
Kentucky’s Kim Davis has disrobed the five members of our Supreme Court, exposing the lawlessness of its decision that state laws conforming to natural marriage were unconstitutional. Let’s hope our state legislatures don’t become complicit in the Court’s lawlessness.
Most news stories so far have focused on the religious liberty issue Ms. Davis raised when she said that she could not issue a marriage license to couples of the same sex because in doing so she would be violating the higher law of God which says marriage is only between a man and a woman.
What Law Is Ms. Davis Violating?
But Ms. Davis’ refusal to issue a license raises a very practical legal problem as well, namely, what law authorizes her to issue a license to two people of the same sex? Clearly, Ms. Davis has no inherent authority to decide who she can and cannot issue a marriage license to.
To understand the practical problem Ms. Davis’ refusal creates, we need to appreciate that there are two kinds of statutory laws, positive and negative. The first, “positive laws,” direct someone to do something. The second, “negative laws,” forbid someone from doing something. This limitation on the types of laws presents a problem for Supreme Court Justices who want to require someone to do something the law doesn’t authorize them to do.
For example, if the law requires a clerk to issue a marriage license to two people of the opposite sex, and the clerk refuses, then the Court, exercising judgment, can direct the clerk to follow the positive law.
And the opposite is also true. The law prohibits incestuous marriage. If a clerk begins to issue licenses to mothers and her children, the Court, exercising judgment, can direct the clerk to stop violating the negative law.
But in the marriage case, we have a positive law directing Ms. Davis to issue a marriage license to two people if they are of the opposite sex. The Supreme Court, exercising judgment, could direct her to issue those licenses if she refuses to follow the law. Likewise, the Supreme Court could direct her not to issue licenses to those in an incestuous relationship if she was violating that law.
But what law is there that the Court can direct her to follow or prohibit her from violating when it comes to same-sex couples? There isn’t one!1
Does the Supreme Court Judge the Law or Make the Law?
Some would say she has to comply with the Supreme Court’s order, but that’s the problem. A court, by definition, can only exercise what our Founding Fathers called “judgment.” It cannot exercise what they called “will,” by which they meant that it could not make law.
So, the Supreme Court has created a problem. The five black robed legislator-jurists did not say it was unconstitutional for a clerk to issue a marriage license to two people of the opposite sex. That law is still good. But the Court can’t “pass” a law that authorizes a clerk to issue licenses to two people of the same sex (or three or four people, for that matter—this issue will come up again!).
It seems to me that Kim Davis’ best legal argument is that there is no law for her to follow, to apply, that would authorize her to issue a license to two people of the same sex, and the legislature has not passed a new law authorizing her to do so.
So, when asked by the press by what authority she is refusing to issue marriage licenses to same-sex couples, she should ask her inquisitors by what statutory authority she is supposed to issue them licenses.
Will Legislators Do the Supreme Court’s Dirty Work?
That argument, as opposed to the religious liberty one, raises a very interesting legal question if the Kentucky legislature never passes a law that essentially codifies what the Supreme Court said. If legislatures do enact those laws, then they will have been suckered into doing for the Supreme Court that which it had no power to do—pass a law.
I have a feeling a showdown is coming if Ms. Davis holds the line and Kentucky (and hopefully Tennessee) doesn’t do the Supreme Court’s legislative work for them.
In sum, I thank you, Ms. Davis, for helping us see that the only truly lawless folks in America in relation to the same-sex marriage issue are Justices Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer. You’ve helped us see that they are not wearing judicial robes, just suits like those worn by every other politician.
1Some will say Ms. Davis is violating the “negative” law that banned same-sex “marriages,” but there was no law banning such marriages, like there is a law banning incestuous marriages. That is why you never heard me refer to our law defining marriage as a “ban” on anything. If our law was a “ban” on same-sex “marriage,” then it arguably was a ban on anything and everything someone might dream up and want to call a marriage, not just same-sex “marriages”! The press (and, unfortunately, many conservatives), in referring to our marriage law as a ban, helped create this confusion. Words matter!
— David Fowler, President of FACT
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
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