Obergefell’s Anniversary Isn’t the One to Focus on

As we approach the first “anniversary” of the U.S. Supreme Court’s Obergefell decision on marriage on June 26, I recalled what a wise friend of mine said a couple of years ago—Christians have approached the question of marriage and its meaning and definition like it was a debate when perhaps we should have approached it more like a beauty contest. His comment stuck with me. Something I experienced Monday and a news story yesterday helped me better understand his observation.

Before I get to my personal story and the news, we need to appreciate why his comment has merit. There is a philosophic and historical aspect to his cultural observation that Christians (and conservatives in general) need to appreciate. There was a time when reason and logic ruled the mind, called the Age of Enlightenment. But that way of looking at life seemed, to many, to leave no place for emotion, feeling, and beauty, so what’s known as Romanticism emerged. Consequently, how one feels about what he or she sees or experiences determines the truth about it, its worth, and its value. That worldview seems to have won the day.

If that’s the case, then examples of beautiful marriages between a man and a woman and the natural fruit thereof may be more captivating to the modern mind than logical arguments about the complementariness of the two sexes, the procreative realities inherent in male-female marriage, and the need for connecting children to their biological parents. That brings me to my personal experience and yesterday’s news story.

At a time when some are now arguing for wed-leases (yes, a marriage license would be a commitment for a defined period that could be ended or renewed) because they see marriage not working for the long haul, my wife and I celebrated our 35th wedding anniversary on Monday.

I’m not bragging about it, and I know that, left unattended, my own marriage could still unravel, but as I reflected back on our 35 years, having just reflected on being a father the day before, I realized what a beautiful journey marriage is.

However, there have been plenty of hard moments, too personal to share in a forum like this. As much as I’d like to say I wish there had not been such moments, the fact is that, having hung in there, they have refined and enlarged us as persons and as spouses. They are a part of what makes me value and treasure my wife and our marriage.

While there are some marriages in which personal safety calls for drastic action, the fact is that the person who perseveres with you during the intimate, intensely personal storms that marital life brings becomes the one you cherish most, the one whose hand you still thrill to hold simply because it means they are there and you know that when they are not there, a part of you is missing.

Then I had breakfast on Wednesday with a friend whose parents were about to celebrate their 74th wedding anniversary, and Thursday morning I read about President and Mrs. Carter celebrating 70 years of marriage. I also learned that President and Mrs. Bush celebrated 71 years of marriage earlier this year. Amazing!

Those of us who want to “defend” marriage need to do more to honor and recognize good marriages that can inspire those who are ready to give up on the idea of marriage or maybe their own marriage. Doing so is part of what the author of Hebrews meant when he wrote, “Marriage is to be held in honor among all” (13:4). It’s the reason I chose this topic for today.

So, as we approach the “anniversary” of the Obergefell decision purporting to redefine marriage, I guess my point is this: If Christians want to win the “marriage debate,” then we need to settle in for the long haul and demonstrate to a watching world the beauty of marriage.

That will take more work on our part, as our current track record on divorce makes amply clear. But if we’ll recommit ourselves to God’s design and intention for marriage, then, we can eventually win the debate.

Despite what some folks want us to believe, God—not the U.S. Supreme Court—will decide when the debate is over. It’s not over yet.

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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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.

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What I Learned From the NAACP

Sometimes you stumble on things and think you have had moments of inspiration and new understanding, only to find out that you are borrowing an idea from someone who came before you. I felt that way last week after I filed a lawsuit over how the U.S. Supreme Court’s Obergefell decision applied to Tennessee’s marriage law. I later realized that the NAACP had already successfully used the approach I was taking.

To understand how the lawsuit I filed is consistent with what the NAACP had done before me, you need to appreciate that the Supreme Court’s Obergefell decision said “state laws [on marriage] are invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

Asking a court (in this case, a state court and not a federal court) to determine how a U.S. Supreme Court decision applies to state law is exactly the same strategy the NAACP used to bring about the decision in Brown v. Board of Education!

Brown v. Board of Education was the case that overturned Plessy v. Ferguson, in which the Supreme Court, 58 years earlier (that’s a long time to wait for correction of a Supreme Court wrong!), articulated the principle that as long as the things by which blacks and whites were separated were “equal,” then the equal protection clause was satisfied.

This was the “separate but equal” doctrine, but it’s important to note that Plessy involved laws segregating passengers traveling by train. It had nothing to do with education. Nothing! Why that was important had never dawned on me until I filed the marriage lawsuit last week.

It’s important because African-Americans, usually with the support of the NAACP, began filing lawsuits asking if the “separate but equal” doctrine applied in other areas of the law, and wisely they picked a sensitive area of the law in which to inquire—education—that everyone would care about. They also sued where they thought they might have a good judge to hear the case.

The Brown decision actually notes the litigation strategy, though a bit less directly:

“The doctrine of ‘separate but equal’ did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.

Eventually, after lawsuits involving how Plessy applied to education, the Supreme Court saw the light. The doctrine was not only constitutionally (and morally) unsound, but it was proving to be a nightmare in its application to all kinds of areas of law that the Court had perhaps not considered. Finally, the Court reversed its decision.

In the present situation, we need to appreciate that the constitutional theory in Obergefell did not just take away the right of the states to define marriage, which is the sole focus of some, but it took away their rights over the whole field of family law, gun rights, health care, education, religious liberty, and taxation. This is a much bigger issue than same-sex “marriage,” as big as that one issue is!

However, the only way to “remove” that constitutional theory from the books is get Obergefell reversed, and the only way to do that, short of succession or Congress waking up to protect the Constitution, is by filing a plethora of lawsuits in key states over the validity and applicability of Obergefell to a multitude of state laws that were passed on the assumption that marriage was the union of a man and a woman.

If declaratory judgment actions were brought over our adoption laws, intestacy laws, estate administration laws, and tax laws, then the Supreme Court of the United States might see the mess they have made of the host of marriage-related laws that are found throughout a state’s code. And who knows who will be on that Court by the time these cases start arriving on their docket.

The problem those who understand the constitutional overreach in Obergefell face isn’t that there are no good lawsuits ripe for filing but that we have too few who are willing to stand up either by suing or representing those who are willing to sue.

But if some will stand up, then we can be encouraged that the path we are on has been tried successfully by those who have come before us.

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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My Take on the TN Natural Marriage Defense Act (HB 1412)

HB 1412, the Tennessee Natural Marriage Defense Act, is a well-intentioned effort to resist the attempt by five Justices of the Supreme Court to rule that a law is unconstitutional and then, by judicial edict, substitute a new law for the one it ruled invalid. They rightly know, and I agree with them, that only legislative bodies can enact new laws or amend existing ones.

However, I have repeatedly said that any law that the legislature will not enforce is not worth the paper it is written on. I have told legislators that if they are willing to enforce the bill after its passage, they should vote for it, but if they are not willing, then they should not do so and falsely lead people to believe they have done something.

If the Natural Marriage Defense Act were to have passed and any state or, and just as importantly, any local official in Tennessee were to have disregarded it, thinking they had to comply with the Supreme Court’s ruling instead, then legislators would have had to be willing to remove that official from office for the new law to mean anything as a practical matter.

But legislators, including the sponsors of the bill, already have the power to do that. They did not need to pass a bill to have that power.

So, if the Supreme Court’s June decision is void, invalid, and unenforceable, as the sponsors of the bill assert, then there should already be, at the present moment, impeachment proceedings pending against the Governor and ouster petitions being filed against local officials. No such actions have been taken.

Because no such actions have been taken and, in response to my questions, no one, including the sponsors, said they would take such action, I reluctantly concluded that the Natural Marriage Defense Act, if passed, would have been ignored and unenforced.

Given that situation, I began to look for another way to challenge what the Supreme Court has done that does not depend upon the political willingness of the legislature or the Governor to enforce a new law and, today, as attorney for the Constitutional Government Defense Fund, I have filed a lawsuit in Williamson County Chancery Court, like the one pending before the Alabama Supreme Court.

The lawsuit will give our state court judges, who are accountable to the people and to the legislature, an opportunity to judge the Obergefell decision. The legislature can then take whatever action is then appropriate based on what our state courts, not the federal courts, say.

I believe this lawsuit is a good first step in responding to Obergefell and a step like HB 1412 can be reconsidered after that step is taken.

At this link are other questions regarding how HB 1412 would work that I found most non-lawyers had not considered.

See the flowchart of possible outcomes.

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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Just Who Will Blount County’s Marriage Resolution Embarrass?

A Blount County commissioner has proposed a resolution related to same-sex “marriage” that has been met with scorn and ridicule by various news outlets and perhaps even by a number of Tennesseans. Why, I can even think of a few folks who might be embarrassed by it. But before we deride this commissioner, we might consider the venerated American politician that we will also scorn in the process.

The resolution is described on the commission’s docket as a “Resolution condemning judicial tyranny and petitioning God’s mercy.” Perhaps if the commissioner had not petitioned for God’s mercy, the resolution would not have made the news. Lots of reasonable people and even mockers of God believe that the Supreme Court overstepped its bounds when it ruled in June that states should allow same-sex couples to marry.

But the following paragraphs are what brought the derision and caught the news of the real atheists and the practical atheists among us:

“We adopt this Resolution before God that He pass us by in His Coming Wrath and not destroy our County as He did Sodom and Gomorrah and the neighboring cities. As the Passover Lamb was a means of salvation to the ancient Children of Israel, so we stand upon the safety of the Lamb of God to save us . . .

“We adopt this Resolution begging His favor in light of the fact that we have been forced to comply and recognize that the State of Tennessee, like so many other God-fearing States, MAY have fallen prey to a lawless judiciary in legalizing what God and the Bible expressly forbids.”1

When you consider how many people in Tennessee profess to be Christians, it is shocking that many would really think anything strange about the idea that God judges nations for their wickedness, that flouting God’s clear design for marriage might incur His judgment, and that there is wisdom in seeking His mercy by means of humble contrition.

But we really don’t like to think that God still does that kind of thing. However, the fact that God is the same yesterday, today, and tomorrow and never changes does put a crimp in that kind of thinking.

So whoever on the Blount County Commission considers himself or herself a God-fearing person might not want to dismiss the resolution out of hand. But they ought to also realize that if they support the resolution, they are in some pretty heady political company—Abraham Lincoln, to be precise.

In his proclamation dated March 30, 1863, Lincoln penned these similar words:

“It is the duty of nations as well as of men, to own their dependence upon the overruling power of God, to confess their sins and transgressions, in humble sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon;

“We know that, by His divine law, nations like individuals are subjected to punishments and chastisements in this world, . . .

“It behooves us then, to humble ourselves before the offended Power, to confess our national sins, and to pray for clemency and forgiveness.”2

A few elected officials willing to align themselves more with Mr. Lincoln’s views regarding God and civil government than those of the liberals in the mainstream media might not be such a bad idea. And those who might fuss at them for doing so should maybe take their complaints up with Mr. Lincoln.


1Read the Blount County Resolution.

2 Read Lincoln’s entire resolution.

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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