Posts

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.

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

Invite David Fowler to speak at your event

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

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

How the Presidency is Like the Electoral College

Last week I wrote about the Electoral College and how it serves as sort of a mediating body in the selection of the President. It serves to mediate between the will of the people as a governing body, based on majority rules, and the will of the states as governing bodies, based on the principle of federalism. But I got to thinking that the presidency operates as sort of an electoral college for deciding who the real rulers of America are.

Americans rightly make much of whom the next President will be, because the presidency is a powerful office. President Obama has shown just how powerful it can be if a President is willing to use the extra-constitutional powers found in a pen and a phone. But the President’s power to influence Congress and to issue executive orders isn’t the most important power the office possesses.

What we must appreciate is that the President services as a one-person nominating committee to the body that actually rules America. In that sense, the Office of President is a bit like the Electoral College—it is that mediating “body” that sits as a buffer between the people and the Supreme Court that actually rules us.

That the Supreme Court rules America today is not hyperbole. The late Supreme Court Justice Scalia said it this way in the Obergefell same-sex “marriage” decision last summer:

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”

The power of judicial review—the power to judge a state law or congressional enactment as contrary to the U.S. Constitution—has always been powerful. But Justice Scalia’s statement was recognition of the fact that, in Obergefell, the Court not only exercised the power to declare that a state law was unconstitutional, but took upon itself a new power to declare what the new state law must be.

When the Supreme Court can decree what laws a state must affirmatively enact or, if the state fails to “obey” what the Court says it must do, can “enact” those laws anyway for the state, then the Court is ultimately in charge. The powers of the presidency, Congress, and the states are subordinate and subservient to the Court, and the Court, not the Constitution, is supreme.

While I care about a lot of issues—laws relative to gun rights, abortion, religious liberty, social experimentation in the military, immigration, fighting terrorism, etc.—how our elected officials will deal with these issues is only the penultimate issue; as much as I hate to say it, the ultimate issue is who is on the Supreme Court and to what extent will the Justices “allow” these federal and state elected officials to address these issues.

I loathe that last statement; I don’t want to concede its truthfulness, because it is a statement our Founding Fathers would have never made or envisioned Americans making. But until we have some members of Congress willing to reign in the Supreme Court, and we won’t have those until our citizens and state officials demand that our members of Congress do so, that’s where we are.

Choose wisely over the next few days as you vote in the Presidential Primary, because you are electing the person who has the sole power to nominate members to the de facto ruling body in America.


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

Federal Lawsuit to Test Constitutionality of Gun Carry Permits

Let me share with you what I think will be the next federal lawsuit related to the Second Amendment. It will test the constitutionality of state handgun carry permits. The legal argument is creative but not far-fetched. What the U.S. Supreme Court will eventually do when the case comes before it is anybody’s guess. If the Court draws its writing pen faster than the NRA can pull the trigger on the Court’s judicial powers, it’s over for gun owners!

The argument rests on the new constitutional jurisprudence articulated by Justice Kennedy in Obergefell last summer. Here are the key quotes from Obergefell that support the effort to ban handgun carry permits:

  1. “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”
  2. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
  3. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

The constitutional text at issue in the case is the Fourth Amendment, which provides “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Notice the words “secure in their persons.”

The argument is that the “legal strictures” we’ve “received” regarding the “bearing” of arms was based on a different type of society and that that “stricture” is now causing “discord” between one individual’s “right to keep and bear arms” and another person’s right to be “secure in their person.”

Using Justice Kennedy’s legal reasoning, the argument is that, even as we have come to “learn”  a new “meaning” for marriage, we are now “learning” the central meaning of what it means to be “secure in our person” in a society that is increasingly violent and in which guns, easily acquired and concealed, are being used to shoot people in movie theaters, on college campuses, and at community centers. It is not enough to be safe from “searches and seizures;” we must be safe in public places as well.

The argument is that there is a new fundamental right to be secure in one’s person in public places. And given the growing “discord” between this new right and the right to keep and bear arms, the fear is that the federal court will try to strike a compromise between the two.

The gun control advocates rely on the fact that the Fourth Amendment puts an emphasis on the home: “The right of the people to be secure in their . . . houses, papers, and effects, against unreasonable searches and seizures.” In other words, they argue, the right to keep and bear arms is paramount within one’s “house,” where one’s person, papers, and effects must be “secure.” For them, the right to bear arms outside the home is secondary, where modern-day law enforcement supposedly can protect you if people are not armed with guns.

Therefore, the constitutional emphasis in the phrase “the right to keep and bear arms” should be on the word “keep” rather than “bear.” By doing so, the Court can hold handgun carry permits unconstitutional and resolve the “discord” created by the new right to personal security in public places and the Fourth Amendment’s two-pronged rights—the evolving right to personal security in public places and the textual right to personal security in one’s home.

It is a creative argument, but at least this one has some text in the Constitution that its advocates can be pointed to, whereas there was no text in the Constitution to support the Obergefell Court’s “newly found” right to marry. Those who said they didn’t care about Obergefell because they didn’t care about who married whom may find themselves the next victim of the Court’s liberal majority.

It will soon be time1 for another shoot out at the Supreme Court corral, and if the NRA members don’t strap on their legal arguments against Obergefell and start shooting, they’ll just be another notch in the Court’s holster of conservatives they’ve taken down.

___________________________

NOTES:

  1. Like a previous week’s commentary about the income tax, there is no lawsuit presently pending asserting this new right. But, again, if I can figure out the argument, you know that the high-priced lawyers for gun control advocates can. I confess, I find a measure of pleasure in helping those who say they don’t care about marriage wake up to what the Obergefell Court really did. However, do not read this commentary as saying I like the argument or that I hope it “wins.” I’m just saying Obergefell opened the door to a whole lot more than same-sex “marriage.”

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