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
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
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
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
Next Tuesday Tennessee will be in the national spotlight as the office of our state’s Attorney General will be arguing before the U.S. Supreme Court the wisdom of our state’s marriage laws. Over recent months I’ve been asked what I think Christians should do if we “lose.” Well, here are my initial thoughts.
I want my first response to be like that of my namesake, David, the King of Israel, a man after God’s own heart. There was a time when he felt as desperate over a situation in his life as I now feel about marriage and the future of our country.
When informed by the prophet that the son he’d conceived through his adulterous relationship with Bathsheba would die, David lay prostrate on the ground, wept, prayed, and fasted for his child’s life, even to the point that his counselors were afraid of how he would respond once he learned that his child had, indeed, died. But when God’s judgment was complete, this is what we’re told of the King’s response:
“Then David arose from the earth, and washed, and anointed himself, and changed his apparel, and came into the house of the LORD, and worshipped: then he came to his own house; and when he required, they set bread before him, and he did eat” (2 Samuel 12:20).
And that should be my response, too, because, like King David, I will know that God is just as sovereign and just as righteous and true in all His ways as He was the day before, and He is, therefore, just as worthy of my trust, my worship, my service, and my affections as He was the day before.
My second response will be to encourage the Church to make an honest evaluation of the situation, as did Nehemiah, who, after examining the walls of Jerusalem, said to his fellow Israelites:
“You see the distress that we are in, how Jerusalem lies waste, and its gates are burned with fire. Come and let us build the wall of Jerusalem, that we may no longer be a reproach” (Nehemiah 2:17).
You see, in my opinion, the Church needs to realize the distress that it, not just the culture, is in.
I honestly believe the Church is in distress not so much because the culture is falling down around it as it is because the Church’s own walls have fallen down and its gates have been destroyed. The people who most need a “sermon” about the law of God are the people of God.
When Moses charged the people of God with keeping the law of God as they entered the Promised Land, he said this:
“I have taught you statutes and judgments, just as the LORD my God commanded me, that you should act according to them in the land which you go to possess. Therefore be careful to observe them; for this is your wisdom and your understanding in the sight of the peoples who will hear all these statutes, and say, ‘Surely this great nation is a wise and understanding people’” (Deuteronomy 4:5,6).
Notice that what was to commend to the watching world the wisdom of God’s law was the beauty—the shalom—that they observed in the lives of and relationships among those who kept the law of God. It was the fruit of keeping God’s law that would lead others to want to “taste and see that the Lord is good” (Psalm 34:8).
When I read that a few years ago and then considered the rate of divorce and adultery and sexual sin within the Church, I couldn’t help but wonder if we, the people of God, have demonstrated enough beauty in our marriages to commend to the people around us the wisdom of God’s design for marriage. I fear the discussion we’re having in Court on Tuesday would suggest the answer is “No.”
And that leads to my third response. I’ll re-commit myself to making sure my own marriage is worthy of emulation by those who would observe it and encourage other Christians to make sure they do the same. It may not be the quick way forward that some would want, but it just may be the most effective one.
— David Fowler, President, Family Action Council of Tennessee
With oral arguments before the U.S. Supreme Court on the constitutionality of Tennessee’s marriage law less than three weeks away, two recent events should make clear to the Justices two things that for sure they cannot say.
Indiana and the Suspect Class
The first event that the Justices should take note of is the lightning speed at which Indiana’s political leaders did an about-face last week on religious liberty legislation in response to threats of a statewide economic boycott by those who believe sexual acts and gender expression are civil rights.
The reason the Justices should take note of this is that one of the arguments made by proponents of same-sex “marriage” is that laws “limiting” marriage to a man and a woman are unconstitutional, because they are designed to target and withhold political rights and privileges—marriage and its benefits—from a “suspect class” of people, namely, homosexuals.
While it is hard to fathom that anyone would seriously believe that marriage laws, which have existed for hundreds of years, were created to exclude homosexuals from anything, the Supreme Court’s “test” for determining a suspect class makes this argument almost comical.
As the Sixth Circuit Court of Appeals noted in upholding Tennessee’s marriage laws, the Supreme Court has considered “four rough factors in deciding whether to treat a legislative classification as suspect” and legislation negatively affecting the class “presumptively unconstitutional.” One of those factors is whether the asserted class is “politically powerless.”
If the situation in Indiana did nothing else, it proved to the world that those who advocate for the rights of homosexuals are not politically powerless. For the Supreme Court to hold that homosexuals deserve special protection as a suspect class because they are politically powerless would destroy the credibility of the Court.
America Is Ready for Same-Sex ‘Marriage’
A couple of months ago, legal scholars and conservative political commentators were shocked when Justice Ginsburg said that she thought Americans were prepared to accept same-sex “marriage” and that “it would not take a large adjustment” for Americans if the Court ordered same-sex “marriage.”
While Justice Ginsburg apparently does not have the integrity to recuse herself from a decision in which she has expressed her pre-judgment of the case, the second event of which she, along with her fellow Justices, should take note is that twenty-four of the fifty states have just filed briefs with the Court in support of their state’s right to define marriage. That means that some states that have court-imposed same-sex “marriage” are actually fighting for their right as sovereign states to decide their own marriage laws.
Constitutional rights should not float along on the breeze of whatever public opinion might from time to time think about some issue, but, sadly, some Justices on the Court, like Ginsburg, believe that this “breeze” is the breath that makes the Constitution a “living document.” Unfortunately for them, the briefs of these twenty-four states should add an odor to the air she and those on the Court who think like her have been breathing that should make repugnant a belief that America on the whole is ready to adjust to same-sex “marriage.”
While the Justices may well find some constitutional justification for subordinating the sovereignty of the fifty states to their views on homosexuality and marriage, we at least know two justifications that should now be off the table.
— David Fowler, President, Family Action Council of Tennessee