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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.

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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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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.

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Good Intentions Make for Bad Politics

I received a text from a legislator yesterday about a well-intentioned piece of legislation that I support in principle but, as written, could not vote for. It is Exhibit 1 for why the legislative process can churn out such bad laws and why we get so disgusted with our politicians.

The situation is this. A couple of friends emailed me this week excited about House Bill 1412, filed by two legislative friends of mine. My friends who emailed me wanted to make sure I was aware of the bill and know if I supported it. They were excited about grassroots efforts to support the bill. They weren’t so excited after our email exchange.

Just reading the bill, it would appear my support for it would be a no-brainer. The bill purports to defend Natural Marriage as the law in Tennessee and directs state and local officials to disregard the U.S. Supreme Court’s decision in June, Obergefell v. Hodges, that said states had to grant same-sex “marriage” licenses.

After my email exchange, I happened to contact another legislative friend of mine regarding a different bill, and the subject of HB 1412 came up. He said, “It seems to me the momentum for this bill is strong. Anyone against it will be a liberal.”

I told him, “Then I guess I will have to be a liberal.”

Now please understand, I am not against the bill in principle, and I am vehemently opposed to the Supreme Court’s opinion for a number of reasons. But legislators don’t vote on “principles;” they vote on the actual words that compel or prohibit certain actions, and those words, not the principle, are the law.

The Two Key Points

So here’s the first point. When grassroots activists get whipped into a frenzy, some legislators (not all and my friend excluded) will find it hard to vote against them, even if they know that a bill is terribly worded and will not accomplish what the masses want. It’s just too hard to explain your opposition, and you’ll wind up with the “wrong” political label at election time (liberal and conservative politicians all do the same thing).

The second point is that, on the whole, we sometimes don’t understand important constitutional doctrines well enough to know if a bill, as worded, is good or bad; we go on whether it sounds good.

How They Apply to the Bill

For example, the bill, as written, says the Attorney General “shall” defend any state or local official who gets sued for disregarding the Supreme Court’s decision and for recognizing only male-female marriages. That sounds great. The state is going to make sure all these state and local officials are represented when same-sex couples sue them in federal court for violating their rights under Obergefell.

Not so fast, please. The Attorney General is under the judicial branch of government under our state Constitution; thus, the doctrine of separation of powers prevents the legislature from compelling the Attorney General to exercise his discretion to file or defend any particular lawsuit.

In other words, this sentence that people think is going to provide some protection to their local County Clerk, Sheriff, County Mayor, County Trustee, Register of Deeds (and I could go on) 1 when they get sued in state or federal court is meaningless. It is constitutionally unenforceable against the Attorney General.

Moreover, our Attorney General is already publicly on record as saying that the state must comply with Obergefell. So do you really think this Attorney General is going to waste his time defending a local official when he has already said they should obey the Court?

Now this problem in the bill can be addressed another way. I’ve suggested a fix to the sponsors, and I hope they take it. But if not, then this “liberal” will not support the bill. 2

So go ahead and call me a liberal, but now you know why we wind up with laws that don’t work and why politicians vote for them. It’s the fatal combination of an understandable desire to “do something” to fix an admitted problem, our lack of training in the application of constitutional principles to real situations, and the fact that some politicians will find it easier to go with the flow than do the hard work of explaining why they voted the “wrong way.”

NOTES

  1. It is not just County Clerks who will be sued for not issuing a marriage license to a same-sex couple. All these local officials I listed have employees who have employee benefits like group family health insurance and retirement benefits that extend to spouses. So all these officials will have to tell the employee in a same-sex “marriage” “no go” as to these things, and each one who does will be subject to being sued in federal court. That’s a minimum of potentially 475 local officials when all 95 counties are considered.
  2. I have other concerns about the bill that may not be fixable and that I think people must understand before they decide what to do, but that is for another day. But those concerns are not because I’ve become a “liberal”!

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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Yes, You Can Resist the Obergefell Marriage Decision!

In recent weeks, many have asked me if it is legally, constitutionally, and historically appropriate to resist the Supreme Court’s same-sex “marriage” ruling. The clear answer is “yes,” and here is at least one answer that meets all three of those criteria—legal, constitutional, and historical.

The appropriateness of Americans resisting the Supreme Court’s ruling in Obergefell v. Hodges is based, in part, on what Abraham Lincoln said after the Supreme Court’s Dred Scott decision. He said that when a Supreme Court decision (1) does not “accord both with common sense, and the customary understanding of the legal profession,” (2) has not “been made by the unanimous concurrence of the judges, (3) does not have “any apparent partisan bias, (4) is not “in accordance with legal public expectation,”(5) is not “in accordance . . . with the steady practice of the departments throughout our history,” and (6) is not “based on assumed historical facts which are not really true,” then that decision may be considered settled and resistance to it “factious” only if it has “been affirmed and re-affirmed through a course of years.”

Application of that test to Obergefell leads to only one conclusion, namely, that Obergefell is not “settled,” should be given little to no precedential value, and can be constitutionally resisted.

Lincoln’s test may first be applied to the Obergefell decision as follows:

  • Same-sex “marriage” is not in accord with common sense and not in accord with the “customary understanding” of marriage in the legal profession.
  • It was not only not unanimous, but it provoked four of the most strongly worded dissents in the history of the Court.
  • Justice Ginsburg showed bias prior to oral arguments in Obergefell. She reflected in her statement that the public seemed ready to accept same-sex “marriage” and referred to constitutional rights in connection with a same-sex “marriage” she officiated.
  • It was not in accordance with the legal expectation of the states but, to the contrary, the expectation of people of the states was that marriage should remain a relationship between a man and woman as evidenced by the passage of thirty-one state constitutional marriage amendments.
  • The recognition of same-sex “marriage” has not been the “steady practice . . . throughout our history,” since the first legal same-sex “marriage” in America wasn’t “authorized” by a state court until 2004.
  • It was based on a wrong understanding of the historical facts regarding the nature of marriage, extrapolating from matters like the abolition of coverture that the fundamental nature of marriage as a man and a woman had somehow also evolved.

Since Obergefell fails the first part of Lincoln’s test, it can be considered “settled” law deserving of deference only if the Court’s authority over the states to define marriage has been “affirmed and reaffirmed through a course of years.” This has not been done in regard to a number of issues, including the constitutionality of the Court’s authority to affirmatively dictate to states a law that they must enact.

If Lincoln’s statement reflects an appropriate, historical test for evaluating whether the exercise of authority by the Supreme Court is to be accepted by other branches of civil government or by the states, which a number of constitutional experts believe it does, then Obergefell v. Hodges is not “settled law.”

Thus, it is certainly more than appropriate for citizens and the states to resist the Court’s ruling by appropriate means. Stay tuned for more on what that looks like.

Find out what you can do to resist the Supreme Court’s tyrannical usurpation of state’s rights at Reclaiming Our Liberty on the Web and on Facebook.”


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.

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