Posts

The Slow Death of Religious Liberty

The Supreme Court refused to hear a case in which the State of Washington changed its pharmacy referral rules for the sole purpose of forcing a handful of pharmacists to carry the “morning after” pill in violation of their religious and moral belief that life begins at conception. Pharmacist referral on the basis of conscience is legal in all 49 other states, and this practice is supported by the American Pharmacists Association and more than 30 other medical and pharmacy associations. In addition, the trial court record contained voluminous evidence that the specific intent of the State was to target “religiously-motivated conduct.” Read more

Brexit, Abortion, and the Future of Party Politics

With the rise of Bernie Sanders and Donald Trump, a political pundit recently predicted that the two major political parties would eventually realign to reflect new policy priorities among voters. As I read the prediction and as I thought about the Brexit vote and the Supreme Court’s abortion decision this week, I couldn’t help but think of another aspect of that alignment that social conservatives may need to consider.

The pundit pointed out that social issues have tended to draw people to one party or the other, even though those people may not have shared that party’s other platform policies. The pundit predicted that, with the “social wars” over, we would now see a “policy realignment” within the parties based on “a clash between nationalists, mostly on the right, and multicultural globalists, mostly on the left.”1

While I don’t think the “social wars” will ever be over, I realized I had touched on this idea several weeks ago in one of my commentaries:

I think some social conservatives have despaired of “values candidates” actually doing anything in support of their values. They have not lost their concern for the social values that drove them in the past to reluctantly support the Doles, McCains, and Romneys, and the do-nothing-but-make-excuses-for-inaction social conservatives who have been elected to Congress, but they have decided that supporting such conservatives isn’t going to result in those values being reflected in public policy. So, at this point, I think some social conservatives … are voting for someone who talks tough on the other issues they care about.

But this shift also seems a bit like the vote that just took place in Britain. I couldn’t help but notice several statements of this type:

But the really important thing is that future Prime Ministers will really have the power to run the country. No longer will they have the excuse that this or that isn’t possible due to some EU directive. Then we will have the chance to throw them out. That is the precious democratic inheritance that our parents and grandparents had which we have recovered and can pass on to our children and grandchildren.2

And I couldn’t help but think how something similar could be said of the United States if the size of the federal government shrunk and the people demanded that the imperialist U.S. Supreme Court be reigned in. Politicians would no longer “have the excuse that this or that isn’t possible due to” some Supreme Court decision or some federal law or regulation. The precious “democratic inheritance” we were given and have squandered could be “recovered” and “pass[ed] on to our children and grandchildren.”

That brings me to the Supreme Court’s abortion decision this week. Pro-life advocates have decried the decision and vowed to continue to fight to overturn Roe v. Wade. As much as I support that idea, it’s fighting the symptom, not the disease. The disease is the judicial philosophy of the Court (and courts at every level) coupled with its lack of accountability. With this judicial philosophy and a completely unaccountable judiciary, we need to realize our “democratic inheritance” is gone.

So how does all this hang together? If the pundit is right about the parties being realigned based on globalist vs. nationalist kinds of ideologies, then a secondary but parallel issue may well be alignment based on whether one party supports a strong national government or a more limited federal government in which states take on an increasing policy function as envisioned by our Founders under the Constitution prior to its reshaping by the Supreme Court.3

The first question in my mind is which party will embrace which of these two competing internal governing structures for the U.S. And the second question is whether social conservatives will, at least for the time being, be content to accept domestic policies crafted at the state level, even if it means some states do some things they won’t like.

The bottom line is that things are changing. Social conservatives would do well to figure out what that change is and where they fit within it.


NOTES

  1. Michael Lind, “This Is What the Future of American Politics Looks Like,” Politico, May 22, 2016 http://www.politico.com/magazine/story/2016/05/2016-election-realignment-partisan-political-party-policy-democrats-republicans-politics-213909
  2. http://heatst.com/uk/brexit-has-energised-britain-bring-on-the-future/
  3. People forget that the Bill of Rights that the Supreme Court has applied to nationalize the federal government and strike down state policies the Court majority doesn’t like originally only applied to the states. It was not until long after the adoption of the 14th Amendment that the Court began to use the Bill of Rights against the states.

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

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

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