My Judicial Hypothetical Proves Prophetic

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


How Should Christians Respond If the Court Redefines Marriage?

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

Two Things the Supreme Court Can’t Say

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

Will Tennessee Be on the Right Side of History?

On April 28th, Tennessee will be in the spotlight nationally and maybe even globally. It will be referenced in one of the most prominent chapters that will ever be written about the history of the United States. On that day the U.S. Supreme Court will hear oral arguments concerning the constitutionality of Tennessee marriage law. Who in that courtroom will be on the “right side of history”?

The “right side of history” is an argument often heard these days against those of us who insist that marriage is a real thing, much like the “rules” for reasoning and speech are real things, real structures for thinking and communicating. And just like a real sentence requires a subject and a verb, marriage requires a man and a woman, real qualities rooted in the biology of x- and y-chromosomes that no surgery, style of apparel, or state of mind can alter.

Supposedly we who believe this way are on the wrong side of history. But that’s a bit of tricky rhetoric. When does “history” end such that we will know what it proves? History isn’t measured like a game in which each side’s points are finally tallied once the final buzzer sounds and the winner declared.

In our generation, in which the immediate present is seemingly all that matters, it may be that by the end of June, when the Supreme Court rules, those who believe as I do will be said to be on the wrong side of “history.”

However, Supreme Court rulings are not the “final buzzer” when it comes to whether one is on the right or wrong side of history. Even the decisions of the Supreme Court don’t often stand the test of time. For example, the Dred Scott decision put slavery on the right side of history, for a while. Plessy v. Ferguson put “separate but equal” on the right side of history, for a time.

What history shows us—even as in the case of the Supreme Court decisions cited—is that the right and wrong side of history is a matter of ethics, not chronology. Right and wrong, and the truth that measures them, are the things that stand the test of time. Truth always wins out and the wrong always gives way to the right, even though it may take hundreds of years for what’s true and therefore right to regain its rightful place in the minds of the people.

And therefore, for me at least, if I’m going to take seriously the various propositions set forth in the Bible, I can’t really be worried about the “right side of history” argument. I can’t worry about it, because I believe that the Creator God revealed in the Bible is the Author of history, and He unalterably moves it toward His appointed ends.

But in regard to those “ends,” Scripture tells me that the “end” of His creation—His intention for it—was that it reflect His glory, which means that what He created had to be consistent with who He is. Anything other than that would have fallen “short” of His glory; it would have been “beneath Him,” we might way.

In that regard, I’m told that God made the human race male and female, because together there is a complementariness to their coming together that reflects the completeness of who He is. Two people of the same sex coming together can never reflect this purpose of God, and, therefore, He “naturally” sees it as our rebellion against His intention.

The fearful thing is that He also has told us He will not allow us to rebel against Him in this (or in any other thing) forever. He could not be just if He did. Thankfully, He did provide a way for us to be made just, and that is why for centuries the cross was the marker by which we measured history. So, I believe that in time the truth about how God has made us and how He intended us to come together will prevail.

Of course, my view of marriage is the minority position these days; however, what today we call orthodox Christianity was also the “minority position” 2,000 years ago. And that’s enough historical proof for me to believe that I should not be too worried about the right side of history argument. History’s in the hands of Someone I can trust it to.

— David Fowler, President, Family Action Council of Tennessee