The Tipping Point

In 1996 Malcolm Gladwell wrote an article called “The Tipping Point” (later a book), an analysis of how social behaviors reach a certain point and then “take off.” America is coming to a legal “tipping point” that will either restore the rule of law and the Constitution or destroy them both.

Last month I wrote about the first shot fired in the new “Civil War” when Gov. Cuomo banned all non-essential travel to North Carolina because it chose to designate multi-occupancy public bathrooms according to biological sex rather than gender identity. In the last ten days, the volleys in this new war kept coming.

Last week fifty-one families sued the Chicago public school system for its gender-bending bathroom policy, arguing that it violated their children’s constitutional right to bodily privacy that previous courts have found in the Constitution.

Fast-forward to this week. On Monday the state of North Carolina sued the United States and its Department of Justice on the grounds that the department has no authority to assert that the prohibition in the 1964 Civil Rights law against discrimination based on biological sex now means “gender identity,” the sex you think you are in your head. The Department of Justice immediately sued the state back.

The next day North Carolinians for Privacy, an unincorporated non-profit association, sued the U.S. Department of Justice and the U.S. Department of Education for, among other things, asserting as a “rule” its sex-means-gender-identity philosophy is unconstitutional because that “rule” was never lawfully adopted as a real rule in accordance with the administrative procedures act.

And while not widely discussed or appreciated, the lawsuit our organization has filed has added to this legal conflict. It asks our state courts whether the Supreme Court’s Obergefell decision on same-sex “marriage” invalidated our state’s marriage license statute or amended it, statutory amendments being something a court clearly has no constitutional authority to do. The Supreme Court had to do one of the other, because certainly no new statute has been enacted by the General Assembly that would authorize same-sex “marriage” licenses.

What does all this mean? It means the Supreme Court’s legitimacy is about to reach a tipping point.

In 1992 Justice Souter, in sustaining the constitutional validity of Roe v. Wade, said, “If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” He added, “The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the nation to which it is responsible.”

All these lawsuits are putting the Court on a collision course with its legitimacy. They are putting the Court in a position in which it must begin to overrule, in some instances, literally hundreds of years of constitutional precedent and established norms of constitutional and statutory construction in order to reach the result its majority philosophically agrees with, which is the Obama administration’s position.

In the next year or two, these lawsuit will force the Court either to return to the rule of law and stop killing the Constitution by trying to make it a “living instrument” or kill the rule of law, kill the Constitution, and assert its supremacy over all things governmental in our nation. In other words, the Court is about to reach the legitimacy tipping point.

Personally, I suspect that the Court will reach the results it desires, not those that the Constitution and its precedence would require. That is when we will find out which of two tipping points Americans will have reached.

Will we have gotten to the point we just don’t care so long as we have a job and enough things to entertain us, or will we then realize the truth of what Justice Scalia said last summer—we are no longer our own rulers, but we are ruled by “a majority of the nine lawyers on the Supreme Court?” Only if we reach the latter tipping point will Americans take it upon themselves, as Scalia said, to remind the Court of its “impotence” and demand that Congress do something about it.

The tipping point is coming, America. What side will you tip toward?

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event

Making America Great Again

Eight years ago the theme “change we can believe in” helped usher Barack Obama into the White House. Will “making American great again” help usher Donald Trump into the White House? Perhaps so. But in my opinion, neither of the two major parties nor their presumptive presidential nominees have the recipe for making America great again.

Of course, some folks think America is still great, but, according to polls about American satisfaction, I think very few feel that way, particularly when it comes to where we’re heading as a nation. Escalating violence and racial strife, overrun borders, terrorism, political correctness, a victimhood mentality, rampant drug use, sexual craziness, dictatorial federal judges, a tyrannical President, and an inept and distrusted Congress are just a few things that bother so many of us.

To be honest, Donald Trump has touched on much of this in his politically incorrect way. In fact, his political incorrectness, I think, has been part of his appeal.

But identifying problems and pointing them out in ways that give voice to the unspoken frustrations many Americans have is not going to make America great again. To get well we must collectively diagnose the underlying condition that is causing our problems.

What, then, is our underlying illness? I think it is the same as that which Jeremiah said of Judah:

Has a nation changed its gods,
Which are not gods?
But My people have changed their Glory
For what does not profit.

For My people have committed two evils:
They have forsaken Me, the fountain of living waters,
And hewn themselves cisterns—broken cisterns that can hold no water
(Jeremiah 2:11,13 NKJV).

Like Judah, America has changed gods. Collectively we have forsaken as our societal foundation the God of the Bible and decided we can hew out a national future for ourselves without God. And we’re finding that the cistern we’ve hewn out and into which we’ve placed our hopes for the future is broken. Hope seems to be leaking out.

I know there are those who will disagree with my interpretation of our national beginning, but let’s be politically incorrect enough to say they are just flat wrong.

The Great Awakenings clearly led to our national independence. The common law, which was rooted in customs grounded in Christian principles, was our primary source of law. If you don’t believe my characterization of the common law, then read the introduction to William Blackstone’s Commentaries on the Laws of England, the lawyers “Bible” during our founding period. And while we didn’t get everything right at the beginning and often acted contrary to our great charter’s premise that nations are subject to the “law of nature and nature’s God” and that our rights came from God, the point is that such was the premise upon which we were founded.

Try bringing those thoughts into a political campaign, college classroom, or major corporate boardroom today and see how well you’re received. Not well, to put it mildly.

For America to be great again, we will have to collectively rediscover that it is God who holds everything, including nations, together, and things hold together when they operate according to the laws He has woven into His universe. But how is that rediscovery going to happen?

As indicated previously, America became a nation and began its trek to unparalleled greatness when the pulpits of the colonies became aflame. But they were aflame with preaching that tied God’s Word to the socio-political circumstances then existing. It was not the self-help, “be-your-best-person-now” psychobabble pabulum that infects so many (but, thankfully, not all) pulpits today.

If America is to become great again, what we need is a change in our pulpits, not just a change in the White House. Maybe Franklin Graham’s tour of the states is a start in the right direction.

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event

American Counseling Association Needs Counseling Over Counseling Bill

When Gov. Haslam signed into law a bill that allowed professional counselors to make referrals under certain conditions, the American Counseling Association (ACA) started to come emotionally unglued. It would be funny if it weren’t the very profession that is supposed to counsel individuals who are coming unglued.

The bill was no big deal, really. The bill put the law in Tennessee exactly back where it was as recently as mid-2014 and where it had been for decades. You read that correctly. The bill put the law regarding referrals by counselors right back where it had been for decades and absolutely no other provision in the law changed at all.

In fact, the law still says, “Counselors do not condone or engage in discrimination against prospective or current clients, . . . based on . . . age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital/ partnership status, language preference, socioeconomic status, immigration status, or any basis proscribed by law.”

So, given that specific provision in the law expressly prohibiting discrimination, why did the Human Rights Campaign call the bill the “Counseling Discrimination Bill”? And why did the ACLU say, “This measure is rooted in the dangerous misconception that religion can be used as a free pass to discriminate”?

Because they can’t tolerate anyone who does not share their values. And that’s why the ACA is now “weighing” whether it should cancel its annual convention scheduled for Nashville in 2017.

But wait, how could they even think about doing that?

According to the ACA, “[C]ounselors need to bracket—set aside—personal values that are not in line with the legitimate counseling goals of the clients.”1 The ACA says, “[B]racketing revolves around the counselor’s ability to take his or her own personal values and set them aside—suspend them.”

So why isn’t the ACA “bracketing” its values and “suspending” them, demonstrating that it can practice what it preaches?

The simple answer is because they are hypocrites. They operate according to their principles but will show no mercy to those who operate by different principles. How pious of them to say they accept all people, except for those who disagree with them!

But that’s not all that’s wrong with the ACA’s threat to take their convention business elsewhere. The counselors who serve on the ACA’s national board seem to be exhibiting petulant, demanding, intolerant, and manipulative behaviors, ironically the kinds of behaviors I suspect most of them would counsel their clients against.

Their threat also looks a lot to me like a kind of “referral,” saying we don’t want to “do business with you,” the very thing they say is discriminatory if its based simply on a difference in values and beliefs. And, of course, that difference is what’s at the bottom of their threat.

Not only that but leaving Nashville in the lurch after booking the event seems to be analogous to a violation of ACA Ethical Rule A.12, which states, “Counselors do not abandon or neglect clients in counseling.”

Furthermore, it sounds to me like the ACA is “abandoning” the city of Nashville because of something somebody else did, the state Legislature. I think in professional counseling jargon that’s called “transference,” an emotional phenomenon by which emotions related to one person are transferred to another. It’s a phenomenon for which counseling is appropriate.

I guess what I’m trying to say was summed up well by what a board member of the Tennessee Chapter of the ACA said of the national group’s threat to take their convention and go home: “I think we have an opportunity to set a different expectation where, if you disagree with somebody, you don’t turn your back on them. You sit down and you talk about it.”

In other words, these guys at the national level need to practice what they preach; they need to sit down and get some counseling.

1. “New Concepts in the ACA Code of Ethics—Interview with Erin Martz & David Kaplan.” Ms. Martz is the ACA Director of Ethics and Mr. Kaplan is the ACA’s Chief Professional Officer.

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event

What’s Truly Historic About Ron Ramsey’s Time in Office

For eight or nine years, I had dinner with Lt. Gov. Ron Ramsey once a week on average during the five-plus months that the legislative sessions lasted. So when he announced this week he was not going to run for reelection, it brought back a flood of memories and history that few know and fewer, if any, even remember.

Ron (readers, pardon me for my informality, but I’m writing about my friend) and I talked a lot about issues and caucus matters when Republicans were the minority in the Senate. During the last two years of the Sundquist administration, a frequent topic was keeping our state income tax free and how the income tax had divided our caucus.

Ron and I felt that we needed stronger leadership in the caucus to oppose an income tax, but there were only two leadership positions available to the minority caucus—leader and caucus chair.

Given the Republican leader’s years of service and expected retirement in two years, our thoughts turned toward having a new caucus chair, the current chair being inclined toward supporting an income tax.

I didn’t really want to run for caucus chair for a number of reasons and, for those same reasons, I didn’t want to “move up the ladder” to run for caucus leader in two years.

But since Ron was interested in running for leader in two years, we settled on me running for caucus chair. He would run for leader two years later without opposition from me. I sent out a letter to the caucus announcing my interest in the position.

A few days later, Ron called. He said that someone had asked if he would consider running for caucus chair. He said that, on second thought, he would like to run. That was fine with me, and I withdrew and gave my support to Ron.

The anti-income tax members of our caucus prevailed in a pretty close vote and Ron became the caucus chair. With that, everything began to change.

What changed was what everyone now knows as Ron’s mantra, “It matters who governs.” Up to that point, Republican leadership in the Senate had reached a truce with Democrats under what was known at the “Wilder Coalition.”

For those who don’t know, the Wilder Coalition came together when Democrats tried to unseat then Speaker John Wilder, a Democrat, because he wasn’t Democrat enough. But he remained speaker when a few Democrats loyal to him joined the minority of Republicans to cobble together the 17 votes he needed to be elected speaker.

Speaker Wilder treated the Republicans pretty well, considering they were the minority party, giving Democrats only a one-vote majority on all the committees and letting Republicans chair some of the more minor committees. In sort of an unspoken truce, Republican senators didn’t ever try to defeat an incumbent Democrat. No one recruited challengers to Democrats, and those who decided to run on their own were on their own.

Ron was not willing to be in the minority, so he began raising more money and recruiting candidates to run against Democrats. When Ron did that, Democrats were shocked. The Wilder Coalition continued because Republicans were still in the minority, and Democrats could still not get rid of him because Wilder still had his loyalist.

Perhaps the Wilder loyalist never thought they’d see the day when Republicans could win enough Senate seats to be the majority party, or perhaps it just didn’t matter because personal loyalty to Wilder meant more to them than party control. But that was the beginning of the end for the Democratic Party in the Senate and eventually in the state Legislature.

A few years later, the Republicans had 17 of the 33 seats. Two Republican senators remained loyal to Wilder so he remained speaker, but when he did not give Republicans chairmanship of a majority of the committees or even chairmanship of the two biggies, Finance and Commerce, the coalition was sure to end. Two years later it did.

That’s some history about Ron’s journey to speaker and why his tenure is rightly seen as historic. Now I want to close with something about Ron’s retirement that is historic in another sense.

Few people attain to such a powerful position in political leadership, and if we look to modern history, most who leave their political positions do not leave of their own volition. Power is just too hard to give up. In the House, Speaker McWhorter became governor and his successor as speaker, Jimmy Naifeh, was defeated as speaker when he couldn’t pull together his own form of a Wilder Coalition. Of course, Speaker Wilder was defeated.

At the end of the day, the ultimate values I believe Ron ran for office to protect were the values that called him home. He listened when they called and let go of political power. That is historic. For me, it defines who he really is. And it’s a great example for others to follow.

Godspeed, my friend. Enjoy your family.

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event

Will Lack of Knowledge Kill Marriage?

Earlier this year a state House subcommittee voted down a bill that would have forbidden every state and local official from giving any recognition to an order of a court that authorized or required same-sex “marriage.” Now an effort is underway to bring that bill straight to the House floor for a vote. The issue is not as straightforward as most think, and it brings to mind the lament of Hosea, “My people are destroyed for lack of knowledge.”

The knowledge of which I speak is a fundamental legal principle that most people would not know because they have not been to law school. But that doesn’t make knowledge about that legal principal any less critical. Failure to understand it could lead to destroying the very thing conservative evangelicals want—the preservation of marriage as the union of a man and a woman and the preservation of our state’s sovereignty.

The critical legal principle is this: Unless a law is “palpably unconstitutional on its face,” it is presumed constitutional until a court judges it to be unconstitutional. This rule immediately creates a problem when it comes to marriage, because we don’t know what Tennessee’s marriage law is for state residents.

The Constitutionality of Tennessee’s Marriage Law Was Not Decided

That sounds preposterous, because we all know the U.S. Supreme Court ruled on marriage last summer. But Tennessee has never had its “day in court” on the issue of whether Tennessee’s law that restricts the issuance of licenses to only “male and female” applicants is unconstitutional. That law was not involved in the lawsuit filed against Tennessee (Tanco v. Haslam).

Consequently, some would say that our law restricting marriage between residents of Tennessee to a man and a woman is still the law. If so, no new legislation regarding marriage is needed. It just needs to be complied with.

Others would say that the law, because it restricts marriage to a male and female, is “palpably unconstitutional” because of the reasoning of Obergefell. But, if that’s true, there is no marriage law at all.

Which argument is correct? The answer is, “We don’t know until a court rules between these two competing legal arguments.” And that’s why we have filed a lawsuit.

Does House Bill 1412 Really Do Anything?

What does that have to do with the bill to affirm natural marriage?

If the law is still valid, because not specifically ruled invalid, then the bill to affirm that marriage is the union of a man and a woman accomplishes nothing new. If the law is not still valid, then the bill accomplishes nothing because no marriage license law exists. For it to “do something” in this instance, the marriage laws would have to be re-enacted.

So what should supporters of marriage do legislatively if they want to support marriage?

What Should Legislators Do?

If the law is not being applied as written by our state and local officials, which is probably the case, then the legislators who want our law upheld don’t need to pass any new law. They simply need to begin impeaching the Governor and the constitutional officers and file legislation to make it easier for citizens to file proceedings in state court to remove local officials, because they are violating the existing law.

But, the problem with that is this: If the law they are ostensibly violating is actually ruled invalid by the courts in Williamson and Bradley Counties, then the grounds for impeachment and ouster would be different; the various officials are then doing things they are not authorized by law to do.

The ‘Right to Marry’ Issue

Here is the other critical legal point. The fact that the U.S. Supreme Court said that same-sex couples have a “right to marry” is not determinative.

Here’s what the Tennessee Supreme Court has said:

a mandatory non-self-executing constitutional provision delegates to the legislature the execution of a power coupled with a command which, it is true, the Legislature may disregard and the Courts are without authority to enforce performance of it by affirmative decree.”

That is exactly what a “right to marry” is, a non-self-executing right.

Waiting for the Tennessee Court Decision

So, to be honest, a bill to reaffirm marriage is premature until our state courts have ruled on whether our marriage license law is still valid or invalid, and it could lead to some bad results and some dead ends (see the attached flow chart of possible outcomes). It is only at that point that the legislature will really know what it needs to do.

If the state courts rule that the existing law is valid and that there can be no same-sex “marriages” until the legislature decides to amend the law, then the legislature needs to do nothing to prevent same-sex “marriages.”

If the court rules that there is no marriage license law for anyone, then the legislature needs to decide whether to do nothing and simply allow men and women to marry under common law or pass a same-sex “marriage” law.

If the court rules that it has the power to order County Clerks to issue marriage licenses even in the absence of statutory language to that effect, then the legislature needs to address itself to those judges.

Let’s hope that enough people understand these legal principles and the need for this process to play out so that the legislature knows what it really needs to do.

If they don’t, then the legislature may pass a bill that gets these critical legal issues dragged into unfriendly federal courts that have proven that they do not understand federalism and the separation of powers. That’s not where advocates for marriage want to find themselves. And unless we’re going to just pretend that federal courts do not exist, then another ruling by them could just kill marriage. That’s not what advocates for marriage want.

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event