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Dropping the ‘F’ Word in the Supreme Court

As I continue to reflect on the oral arguments that were recently made in the Supreme Court regarding marriage, I noticed that one word—an “F” word—was used more times than almost any other word other than the obvious words “people” and “marriage.” And the way it was used makes me think of another “F” word that may turn out to be more fitting.

In case you’re wondering, the “F” word that was used in Court was not the one that gets bleeped by media censors. But in much the same way as that “F” word seems to get thrown around indiscriminately these days without any reflection on its meaning, the same happened with the word I have in mind.

What Is the ‘F’ Word?

That word is “fundamental.” It was used forty times by either the Justices or the lawyers and in the context that marriage is a fundamental right. The most interesting use of the “fundamental” word was by Justice Sotomayor, whose use was similar to that of Justice Breyer. Here is what she said:

“The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right. … The issue is you can’t narrow it down to say, but is gay marriage fundamental? Has black-and-white marriage been treated fundamentally? The issue was starting from the proposition of, is the right to marry fundamental? And then is it compelling for a State to exclude a group of people?”

But Justice Sotomayor’s starting point is wrong, and as a result she will wrongly conclude that same-sex “marriage” is the equivalent of marriage as it’s been understood for “millennia.”

The Wrong Starting Point

The “starting proposition” isn’t that marriage is a fundamental right. She assumes that it’s fundamental. However, neither she nor Justice Breyer ever articulated any basis for why marriage has been treated as a fundamental right in the past.

As I tell those who attend our Stand for Truth Seminar, “Make those who throw around key words explain what they mean by them and defend them.” And, sadly, no one ever made Justice Breyer or Sotomayor do so.

The point is this: You can’t decide if something is “fundamental” until you know what it is. And then you have to decide what it is that makes that thing fundamental. Only then can you determine if some other thing—in this case same-sex relationships—shares in or partakes of that which made the original thing fundamental.

In this case, the “thing” is “marriage,” and until recently it was always made up of a man and a woman. So what about that relationship might have made us think it is fundamental?

What Makes Marriage ‘Fundamental?’

If we’re going to exclude the possibility of a theological answer, then Webster’s Dictionary provides a little logical help to us here. The first and primary definition of the word “fundamental” is this:

a: serving as an original or generating source : primary
b: serving as a basis supporting existence or determining essential structure or function

Let’s not ignore the obvious here, as many of our Justices apparently want to do. What might the relationship between a man and a woman have been “original” in relationship to or what might the relationship between a man and a woman have been a “generating source” of?

How about children? How about the future generation? How about the ongoing existence of the community or state?

Of course, that is what made previous societies and states think marriage was “fundamental.” There was no future society or state without that relationship! In that sense, it was “serving as a basis supporting existence,” as Webster put it.

Same-Sex ‘Marriage’ Cannot be Fundamental

And how does a relationship between two people of the same sex provide “origin” to or become a “generating source” for children and future generations and thereby “support the existence” going forward of community, society, and the state? It doesn’t and can’t except for the intervention of science.

But that intervention itself proves that same-sex “marriage” is not the same kind of thing;
same-sex “marriage” does not share at all in that which is “fundamental” to marriage or, more importantly, that which made marriage “fundamental.” If Justice Kennedy will stop to think about it, that may explain why for “millennia,” as he noted, no one ever thought same-sex “marriage” was fundamental.

So, we can define marriage any way we want, but if we do, it will cease to be something fundamental to anything and will take on the character of another “F” word—fungible. Any relationship among any number and type of people will have to be deemed a marriage if Justice Sotomayor’s thinking prevails.


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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Asking and Answering the Wrong Questions on Marriage

As I listened to the oral arguments on the constitutionality of Tennessee’s marriage laws on April 28th, I got frustrated. The Justices who appeared to support same-sex “marriage” couldn’t seem to understand the state’s answers to their questions, and I didn’t understand why. At 4:30 Wednesday morning I got my answer.

In short, the reason was that the Justices were asking the wrong questions. Here’s what I mean.

The Importance of the ‘Right Question’

Phillip Johnson, father of the intelligent design movement, wrote in the introduction of his 2002 book, The Right Questions:

“I have learned that the best way to approach a problem of any kind is usually not to talk or even think very much about the ultimate answer until I have made sure that I am asking all the right questions in the right order. … [W]hen I want to persuade a lecture audience, I must be very careful to ensure that the audience understands the question correctly before I try to supply an answer.”

Ironically, the example he gave of what he meant related to marriage:

“[W]hen law reformers in the 1960’s liberalized the law of divorce, in the process they transformed marriage (at least as it’s understood legally) from a sacred bond to a mere civil contract voidable at the option of either party. Although the reformers did not intend to approve same-sex marriage and probably never conceived of it as a possibility, a sufficiently far-sighted person could have seen that the tracks were headed in that direction.”

And then, to show how astute his powers of observation were, he continued,

“Now that the train has picked up a great deal of momentum, anyone can see that it is headed toward approval of gay marriage. The train will eventually get to that destination whether most people like it or not, unless some very strenuous work is done to move the tracks and point them in a different direction. Trying to stop the train by standing in its path is a good way to get run over.”

This was written two years before Massachusetts became the first state to “legalize” same-sex “marriage”!

The ‘Wrong Questions’ the Justices Asked

Applying the foregoing to Tuesday’s oral arguments, the Justices thought to be leaning toward same-sex “marriage” kept asking the states’ attorneys why their states had defined marriage in such a way as to include only opposite sex persons. Why, they asked, could the state not have defined it to include same-sex couples?

Interestingly, in the same vein, the Justices opposed to making same-sex “marriage” a constitutional right asked the correct countervailing question, namely, what would keep someone from arguing that marriage should include three or more people.

Both sets of questions are good ones, and to be perfectly honest, no one on the opposite side of those questions had authoritatively sufficient answers. But that’s because those weren’t the right first questions.

The Real ‘Right’ Question

The right first question was whether marriage is a name that civil society has given to a unique relationship that is a part of the order or nature of things or whether it is merely a creation of civil society. Putting this question in theological terms, the question would be whether marriage is something created by God (perhaps by nature if you’re an evolutionist) or by man. The answer to that question determines everything.

If God “made up” marriage, then we can no more redefine it than we can change the requirement that a sentence, in order to make sense and not be gibberish, has to have a subject and a verb.

Making the Definition of Marriage Gibberish

Had supporters of gibberish been in the courtroom asking that their “statements” be given the same “dignity” on a high school grammar examination as a complete sentence, no one would have asked the state why it had sanctioned its teachers to only recognize as a proper sentence only those strings of words having a subject and verb and had not accorded to a prepositional phrase the same.

We would all laugh if the Court declared a prepositional phrase the grammatical equivalent of a sentence. But when it comes to marriage, for some reason we think we can declare with a straight face something to be a marriage that is not a marriage.

No Answer to Why or Why Not?

So the whole problem with the oral arguments on Tuesday and the reason I was so uncomfortable with the questions and the answers is that, apart from God, there are no good answers to why marriage should be limited to man and a woman or to why marriage should not include three or four people.

That is not to say that the state can’t have a reason for limiting marriage to a man and a woman, but reasons can be and were given for why it should not be so limited. And there are reasons for why the state should not let three or more people marry, but then again, there are reasons for why it should not be limited to two people, if marriage truly is just, as same-sex “marriage” proponents suggest, a relationship of mutual love and respect, and shared responsibility.

Justice Kennedy rightly realizes that for some reason marriage as a relationship between a man and a woman has been recognized for millennia, and the reason, which he is unwilling to admit, is because marriage is what marriage is. And that is also why, as he noted, societies and cultures have recognized it even when it was not defined by law, per se.

The Haunting Question

Justice Kennedy is on the horns of a dilemma.  He knows deep down that there is a truth about marriage, yet because he appears to be willing to deny God’s relevance to matters like this, he is trying to figure out if he can suppress that truthYou might even say he’s facing a crisis of faith, a question that hauntingly comes to every man from the very beginning—“Hath God said?”

It is my hope that Justice Kennedy will choose not to play God, and at least do what Pilate did with Jesus when torn between the people and the law—turn the question over to the people and let us decide the question for ourselves.

Sadly, until marriage supporters are willing to ask society the right first question, that may be the best we can hope for.


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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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 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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