Why Obamacare Haters Should Care About Gay ‘Marriage’

At first blush, it would seem that fiscal conservatives who hate things like Obamacare would be uninterested in the Supreme Court’s ruling in June on gay “marriage.” But the same judicial philosophy that gave us gay “marriage” kept Obamacare alive. Consequently, no one’s liberties are safe from this Court. No one’s.

To understand why the judicial philosophy undergirding the gay “marriage” ruling, Obergefell v. Hodges, is the same as the SCOTUScare ruling, King v. Burwell, you need to understand what the Court did in King.

The Legal Issue in King

In King, the issue was whether government insurance premium subsidies were only available for polices purchased on insurance exchanges “established by a state.” The reference to “state” exchanges occurred upwards of seventeen times in the statutory language of Obamacare.

As you know, this was a problem since few states established exchanges; most were established by the federal government.

The Practical Problem in King

This was a problem because the Court knew that if the subsidies could not also be given for policies on federal, government-established exchanges, then Obamacare would collapse as a practical matter. The premiums would not longer be affordable for the majority of policies being bought through state and federal exchanges.

So, effectively the Court “interpreted” the statutory words “established by the state” to mean “established by the state or the Federal Government.” That’s exactly what Justice Scalia said in his dissent, “The court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government’ … .”

What the King Court Really Did

What the Court did was effectively legislatively enact a statutory amendment to Obamacare. Passing laws and amending laws is not the function of the Court.

But, liberals say, “Obamacare would have collapsed. What was the Court supposed to do?” Again, Scalia gave the answer, “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state exchanges.” Of course, Congress might not have re-enacted Obamacare, but that is a political question and should be of no concern to the judiciary.

Letting the Court judge and the legislature legislate is the complementary work of governing envisioned in our Constitution. It is nothing strange or new. Every year as a state Senator, I voted on laws amending existing laws to “fix” something that in our limited foresight we didn’t anticipate. Congress, not the judiciary, should have amended Obamacare.

The Obamacare and Gay ‘Marriage’ Judicial Philosophy Are the Same

But here is where the Court’s judicial philosophy is the same as under Obergefell. In both cases, the Court was acting as a legislative body. In King the majority amended a statute to say what it didn’t say, and in Obergefell they expect states to treat their marriage statutes as if the Court had amended them to say “two people” can marry instead of “one man and one woman.”

Violating Basic Principles of Government

Our Founding Fathers were very clear regarding the limited nature of the Court’s power. Federalist Paper 78 says that the Court has “neither Force nor Will, but merely judgment.”
In other words, the Court can judge whether a law is constitutional, and it can judge the meaning of the actual words in law, but it can’t exercise the political “force” nor “will” to write a law or to amend a law by interpreting it to add words that aren’t there. When the Court does this, it should scare all of us.

Why This Is Scary for All

We are warned in Federalist Paper 78, “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.” This is true because when words no longer have any meaning, as they apparently did not in King, then the words of statutes and the Constitution will morph into whatever five unelected, unrepresentative lawyers on the Supreme Court say it is. Representative government of and by and for the people is dead!

What Can Tennesseans Do?

Since Congress has chosen to abdicate its responsibilities under the Constitution to reign in the Court, it will be up to the states to do so. While Congress chose to do nothing to keep the Court from amending its Obamacare statute, Tennesseans can insist that its legislature not be so spineless. We can insist that Tennessee show Congress how to have a backbone by reminding the Court that only our state legislature can amend Tennessee’s marriage statutes. If you want to encourage them to do that, then go to Reclaiming Our Liberty to find out what you can do.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Tennessee Court’s Attempt to Change Parenting Form Backfires

This week the Administrative Office of the Courts (AOC) was taken to task by FOX News, and after a big “mea culpa“ from their office, I couldn’t help but think of the legal maxim, “Ignorance of the law is no excuse.”

The “controversy” was over a change to a court form put out by the AOC, which is under the auspices of the state’s Supreme Court, serving at its “pleasure.”1 The particular form was a standard template order setting forth the “parenting plan” for when there are two divorcing parents of a child.

TN-AOC-parentform-originalThe old form (see image above) had a box for “plaintiff” and a box for “defendant” in which you typed the names of the parties, and under their names, in each box, were two other check boxes, one labeled “Mother” and one labeled “Father.” You obviously checked the box that pertained to the parental capacity corresponding to the party, whether plaintiff or defendant.

But, the AOC, no doubt with the Court’s knowledge, changed the form (see image below) to delete the reference to “Mother” and “Father” and replaced it with “Parent 1” and “Parent 2.” That is the change that sparked the firestorm.

TN-AOC-parentform-revisedTo be honest, had the form originally said “Parent 1” and “Parent 2” years ago when it first came out, probably no one would have thought a thing about it, because, in a standard form, you’re not going to know in any particular divorce proceeding whether the plaintiff is going to be the man or the woman.

But the form didn’t say that originally because that is not how we thought of parents. Parents were mothers or fathers, period. That’s why the change was a problem.

In the first place, “married” same-sex couples aren’t both really parents, since in Latin, parent literally means, “to bring forth.” Obviously, two people of the same sex can’t really “bring forth” a child together. So, in a sense, the new form was incorrect in that both of them can’t even be “parents” except the law declare them to be so. But for sure, one of them can’t be the “Mother” and the other can’t be the “Father.”

That leads to the second problem. The Court was either being politically correct or inadvertently disclosing its own understanding of marriage and parenting by changing a form that didn’t technically need to be changed. In the event of a same-sex “marriage,” both individuals could have simply checked “mother” or checked “father,” as the case may be. But in changing the form, the Court slighted the vast majority of parents by diminishing our status from mother or father to merely parent 1 and parent 2. I am not a 1 or a 2, I am a father, thank you.

That the Court would make this kind of change, when not strictly necessary, makes me wonder what other laws, specifically passed by the legislature on the assumption marriage was always going to be between a man and a woman, the Court will take upon itself to willy-nilly “interpret” to apply to same-sex couples. As a Justice in Louisiana recently said, “I do not concede the reinterpretation of every statute premised upon traditional marriage.”

In fact, if this were a “normal” constitutional case, one might argue that all the other laws in the state related to marriage should be invalid if the law defining marriage is invalid. After all, the other laws were premised on a certain assumption regarding marriage that the U.S. Supreme Court now says a state was not entitled to assume. In other words, it would be perfectly within the rights of the legislature and the courts to evaluate every law on the books pertaining to marriage to see if it should still apply.

Thankfully, the AOC withdrew its changed form and reverted to the old form. But it only did so because it got so many calls of protest about the form, and those calls helped the administrators realize that they did not have the power to unilaterally change the form in the first place. State law requires that a legislatively established judicial council first make changes in court forms before they become official.

To which I say to the members of the Supreme Court and its administrative arm, “Ignorance of the law is no excuse.” Since we now know that you may also be ignorant of what marriage and parenting in their truest sense are biologically really about, we’ll be keeping a closer eye on you all.



1 T.C.A. § 16-3-802(a)

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Keeping Politics Out of the Court?

Judges want us to believe that they are above “politics,” and, in fact, the advertisements running to support the retention of three of Tennessee’s sitting Supreme Court Justices urge us to “keep politics out of the court.” If that’s what they want, then they need to stop responding to voters the way they did when asked certain survey questions by The Family Action Council of Tennessee.

The survey questions asked of the state’s Supreme Court Justices were directed solely at trying to determine their judicial philosophy. For example, one question simply asked which of the justices on the U.S. Supreme Court they most identified with in terms of judicial philosophy. It asked if they agreed or disagreed with certain statements made by other jurists about judicial philosophy.

Here is how Justices Lee and Clark both responded:

It is my policy not to answer questionnaires in order to prevent any appearance that my consideration of a case that comes before the Supreme Court would be influenced by anything other than the record and the law applicable to that case. For that reason, I must respectfully decline to answer this questionnaire.

That sounds really great. Very high-sounding. But are they really being honest with voters?

When you read the survey, you’ll notice that not one question asked for the Justice’s view on any particular issue like abortion, gay marriage, the death penalty, or gun rights. Not one.

Not one question asked what they might do on any particular type of case. In fact, they weren’t even asked if they agreed with any particular decision in any particular case previously decided in any court in the entire world. Not one!

So what kind of “case” were they being asked about that if they answered they would be creating an “appearance” that they were being “influenced” by something other than the facts and the law? The correct answer is “none.”

In light of their answer, now consider this. These Justices are currently running advertisements that specifically tell us that they have upheld a high percentage of death verdict cases and they support Second Amendment rights.

In other words, they are eager to tell us what they want us to know about them, even on specific issues and types of “cases.” However, they want us to believe that judicial integrity somehow compels them not to tell us something as non-case specific as whether their judicial philosophy is more like Chief Justice Roberts or Justice Ruth Bader Ginsburg?

If that’s true, then they are beginning to sound like a bunch of politicians playing politics by hiding their views from voters on issues they don’t want them to know about. Like smooth-talking politicians, they seem more than willing to tell us what they want us to know, but completely unwilling to answer honest questions about things we want to know.

Consider this as well. The cover letter accompanying the survey given to them specifically cited the 2002 decision of the U.S. Supreme Court holding that judges could not be prohibited by any rule of judicial ethics from “announcing their views on disputed legal and political issues” (Republican Party of Minnesota v. White, 536 U.S. 765 [2002]).

Citing the case to them should have helped discourage the kind of answer they wound up giving. If nothing else, it should have put them on notice that the organization asking the questions knew better than to accept the kind of answer they gave. But it seems they didn’t care.

The point, apparently lost on these Justices, is that there is nothing in the law or the canons of judicial ethics that would cause them to say that they “must decline” answering the kind of questions they were asked—nothing except their own unwillingness to do so.

Like real politicians, the judges have done their politicking. Beginning today, voters will now have their chance to judge the politics of judges.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Constitutional Crisis

Our state’s elected leaders are playing a game of constitutional roulette. And if they lose, Tennessee will face a constitutional crisis of tsunami proportions. I say that because of the United States Supreme Court’s decision regarding the unconstitutionality of the President’s recess appointments to the National Labor Relations Board.

The Court affirmed the decision of the Court of Appeals in which the following statement was made: “The Board had no quorum, and its order is void.” The Board, of course, is the National Labor Relations Board that had issued an order against a business who appealed the validity of that order.

The appellate court’s statement meant that when the Board met subsequent to those illegal appointments, those illegally appointed members were effectively “not there” as a matter of law. Of course, not being there, the Board lacked a quorum at its meetings. Lacking a quorum, all the Board’s orders and decisions were void. The logic is flawless.

Setting Up the Game

With that background, here is the game of constitutional roulette we’re playing in Tennessee. The graphics in this video explain visually what follows.

Earlier this year, Tennessee trial judge Hamilton “Kip” Gayden ruled that the composition of the Judicial Performance Evaluation Commission (Commission) was invalid under state law. State law requires that the panel’s composition “approximate the population of the state with respect to race and gender.”

Tennessee’s population is roughly 52 percent women and 48 percent men, yet the Commission is made up of two women and seven men, meaning women make up only about 22 percent of the panel. The failure of the Commission to even come close to meeting the statutory requirements meant that the Commission was invalid.

If Judge Gayden’s ruling stands, then the three justices of the state Supreme Court standing for retention election in August should not be on the ballot (as well as all the court of appeals judges who were also recommended). Under state law, a sitting justice can only be on a retention ballot if the Commission approves his or her past performance. So, if the evaluation that put them on the ballot was made by an invalid Commission, then it would logically follow that the justices did not meet the requirements to be on a retention ballot.

The Game Will Be Played in August

Next, let’s assume those justices are retained when we go to the polls in August. If we follow the reasoning just approved by the Supreme Court to the effect that rulings by invalidly seated governmental bodies are void, then every judgment these justices make after being retained would have to be invalid. That is so because three of the five justices would not, as a matter of law, have been there.

Here’s the nightmare. After their re-election, assuming they are re-elected, these justices will begin to rule on cases that are already pending before them. But assume some later time, maybe a year or two later, a lawyer who wants to preserve a favorable trial ruling argues that his losing opponent has no court to appeal to.  And why?  Because the majority of the justices aren’t validly there.

At that point, a special panel of judges will be appointed and, if they are honest, they will agree with Judge Gayden. If that happens, then every ruling by our Supreme Court (and courts of appeals) issued prior to then should be as invalid as the rulings by the improperly seated National Labor Relations Board. That is a nightmare.

Is There A Way Out?

Why our political leaders made no effort to fix this potential problem and gambled on no court ever upholding Judge Gayden’s ruling isn’t relevant at this point. The point is that re-electing these judges is to make the same gamble.

So, when you go to vote for these Supreme Court justices (and the appellate judges), just remember that you’ll also be deciding whether to join the game of constitutional roulette.  The decision to play or not play the game is yours.

Watch David Fowler explain the game of constitutional roulette in this YouTube video

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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