Posts

Who Does Judge Roy Moore Think He Is?

The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.

The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.

And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.

The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”

This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.

A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.

So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.

Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.

Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?

Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1

So here is what the U.S. Supreme Court said in Obergefell:

“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”

To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.

But the Obergefell Court also said this:

“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”

Notice that both of these sentences represent the “holding” of the Obergefell court.

So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?

Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?

Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”

Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.

That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.

Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.

__________________________

NOTES

  1. Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.

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

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.
_____________________________________

NOTES

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.

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

Invite David Fowler to speak at your event

Kim Davis Shows Supreme Court Wears No Robes

Kentucky’s Kim Davis has disrobed the five members of our Supreme Court, exposing the lawlessness of its decision that state laws conforming to natural marriage were unconstitutional. Let’s hope our state legislatures don’t become complicit in the Court’s lawlessness.

Most news stories so far have focused on the religious liberty issue Ms. Davis raised when she said that she could not issue a marriage license to couples of the same sex because in doing so she would be violating the higher law of God which says marriage is only between a man and a woman.

What Law Is Ms. Davis Violating?

But Ms. Davis’ refusal to issue a license raises a very practical legal problem as well, namely, what law authorizes her to issue a license to two people of the same sex? Clearly, Ms. Davis has no inherent authority to decide who she can and cannot issue a marriage license to.

To understand the practical problem Ms. Davis’ refusal creates, we need to appreciate that there are two kinds of statutory laws, positive and negative. The first, “positive laws,” direct someone to do something. The second, “negative laws,” forbid someone from doing something. This limitation on the types of laws presents a problem for Supreme Court Justices who want to require someone to do something the law doesn’t authorize them to do.

For example, if the law requires a clerk to issue a marriage license to two people of the opposite sex, and the clerk refuses, then the Court, exercising judgment, can direct the clerk to follow the positive law.

And the opposite is also true. The law prohibits incestuous marriage. If a clerk begins to issue licenses to mothers and her children, the Court, exercising judgment, can direct the clerk to stop violating the negative law.

But in the marriage case, we have a positive law directing Ms. David to issue a marriage license to two people if they are of the opposite sex. The Supreme Court, exercising judgment, could direct her to issue those licenses if she refuses to follow the law. Likewise, the Supreme Court could direct her not to issue licenses to those in an incestuous relationship if she was violating that law.

But what law is there that the Court can direct her to follow or prohibit her from violating when it comes to same-sex couples? There isn’t one!1

Does the Supreme Court Judge the Law or Make the Law?

Some would say she has to comply with the Supreme Court’s order, but that’s the problem. A court, by definition, can only exercise what our Founding Fathers called “judgment.” It cannot exercise what they called “will,” by which they meant that it could not make law.

So, the Supreme Court has created a problem. The five black robed legislator-jurists did not say it was unconstitutional for a clerk to issue a marriage license to two people of the opposite sex. That law is still good. But the Court can’t “pass” a law that authorizes a clerk to issue licenses to two people of the same sex (or three or four people, for that matter—this issue will come up again!).

It seems to me that Kim Davis’ best legal argument is that there is no law for her to follow, to apply, that would authorize her to issue a license to two people of the same sex, and the legislature has not passed a new law authorizing her to do so.

So, when asked by the press by what authority she is refusing to issue marriage licenses to same-sex couples, she should ask her inquisitors by what statutory authority she is supposed to issue them licenses.

Will Legislators Do the Supreme Court’s Dirty Work?

That argument, as opposed to the religious liberty one, raises a very interesting legal question if the Kentucky legislature never passes a law that essentially codifies what the Supreme Court said. If legislatures do enact those laws, then they will have been suckered into doing for the Supreme Court that which it had no power to do—pass a law.

I have a feeling a showdown is coming if Ms. Davis holds the line and Kentucky (and hopefully Tennessee) doesn’t do the Supreme Court’s legislative work for them.

In sum, I thank you, Ms. Davis, for helping us see that the only truly lawless folks in America in relation to the same-sex marriage issue are Justices Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer. You’ve helped us see that they are not wearing judicial robes, just suits like those worn by every other politician.

____________________
NOTES
1Some will say Ms. Davis is violating the “negative” law that banned same-sex “marriages,” but there was no law banning such marriages, like there is a law banning incestuous marriages. That is why you never heard me refer to our law defining marriage as a “ban” on anything. If our law was a “ban” on same-sex “marriage,” then it arguably was a ban on anything and everything someone might dream up and want to call a marriage, not just same-sex “marriages”! The press (and, unfortunately, many conservatives), in referring to our marriage law as a ban, helped create this confusion. Words matter!


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

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.

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

Invite David Fowler to speak at your event

Why Marriage Might Win in the Supreme Court

It is a foregone conclusion to many that the Supreme Court will find the man-woman definition of marriage unconstitutional. I confess, I’ve often felt that way. However, for the first time in a while, I thought of something that gave me a true sense of optimism.

Like many, I believe that Justice Anthony Kennedy may be the vote that decides a 5-4 outcome, one way or the other. What gave me hope was actually a pro-abortion opinion of which he was a part back in 1992, Planned Parenthood v. Casey.

One of the reasons the Court gave in Casey for not overruling the 19-year-old legal tradition established by Roe v. Wade was that doing so “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”

This, he said, was true because the “Court’s power lies … in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

And according to the Court, the kind of “perception” leading to the “acceptance” that it needs is based on its ability “to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures … .”

In other words, when the Court can’t ground its decision in precedents that have developed over time and that been accepted by the people, it begins to look like just another political branch of government, undermining what we need to believe as a nation—that the Court is the one entity that rises above politics to operate on the basis of the rule of law.

But it is here that a Justice like Kennedy, who cares about the Court’s legitimacy in the eyes of the general public, has a problem. The precedent of the Court for over 200 years has been based on an understanding that marriage is the relationship between a man and a woman.

And that length of time is important, too. Justice Kenney agreed in Casey that a decision overruling prior precedent “is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong.” And as he noted, “There is a limit to the amount of error that can plausibly be imputed to prior courts.”

In my opinion, asking Americans to believe that the Court has been in error for over 200 years in its understanding that marriage is the relationship between a man and a woman reaches the “limit” of the “amount of error” that is plausible.

Justice Kennedy apparently thought in Casey that after only 19 years it would be implausible for Americans to believe that abortion was no longer a constitutional right. If that’s true, then surely he will think it implausible for Americans to believe that it’s now somehow constitutionally impermissible to define marriage as a man and a woman after we’ve done so for the more than 200 years since our Constitution was ratified.

And implausibility is not something Justice Kennedy can afford to risk, because the legitimacy of the Court is already at an all-time low. An Associated Press opinion poll released last week showed that only 23 percent of Americans have a great deal of “confidence” in the Supreme Court.

Justice Kennedy, to paraphrase the language you signed onto in Casey, there is a limit to the level below which confidence in your Court can go before you, your colleagues, and your rulings will be no longer “plausible” and your edits viewed as illegitimate. And you are at your limit.

Ironically, the position Justice Kennedy took in Casey was not the one people expected from the Reagan appointee. Pro-lifers were as sure then that he was the vote they needed to reverse Roe v. Wade as same-sex “marriage” advocates are sure today that they will get his vote to turn marriage on its head. The pro-lifers were wrong about him. Perhaps this summer, history will repeat itself.


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