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Look Who’s the Bully Now

I read an editorial opinion this week about the decision by various organizations sympathetic to the sexual license philosophy to “boycott” Tennessee because the Legislature passed a law that allowed professional counselors to make a referral if they could not, in good conscience, support or affirm a client or potential client’s desired therapeutic goals. In reading it, I came to a new understanding of what it means to be a bully.

To appreciate the editorial’s comment, which I’ll share in a moment, one has to appreciate the situation. The “counselors’ bill” does not allow a counselor to refuse counsel to a person because of their sexual beliefs. The law still says, “Counselors do not condone or engage in discrimination against prospective or current clients . . . based on . . . gender, gender identity, sexual orientation, marital/partnership status . . . .” So any implication that a counselor can say, “Oh, you enjoy sex with persons of your own sex. Go away,” is wrong.

Further, the law still says a counselor can’t drop a client like a hot potato if, during counseling on a particular issue, the client’s sexual practices are revealed. The law says, “Counselors do not abandon or neglect clients in counseling. Counselors assist in making appropriate arrangements for the continuation of treatment, when necessary.”

It is only when the client has a therapeutic goal that the counselor cannot, in good conscience, help the client achieve that the law kicks in. Even then, in keeping with the new law and the preceding paragraph, the counselor must facilitate a referral to another counselor.

However, the sexual license community, which often uses the acronym LGBT, thinks the law is “targeted” at them. They must think that the only goals for which persons might seek a counselor’s help relates to their sexual practices or their sexual identity. And in any event, certainly no counselor would have a problem helping a client achieve the therapeutic goal of getting comfortable with an act of jihad, euthanizing a spouse, or overcoming nagging guilt over intense anti-Semitic feelings, all possible therapeutic goals a client could have. Perhaps knowing no counselor would have a problem with those therapeutic goals explains why neither ISIS, the Hemlock Society, nor neo-Nazi organizations, respectively, have objected to the new law or threatened boycotts of Tennessee.

So the sexual license crowd decided to boycott the state to “punish” the state economically for targeting them. That’s fine. That’s their prerogative. Now for what the editorial said.

It was this sentence regarding the Legislature’s “who cares?” response to those boycotts and threatened boycotts by the sexual license crowd that caught my eye: “By pulling out of Nashville, these professional organizations have empowered the bullies.”

What? The Merriam-Webster dictionary says that a boycott is an activity designed “to express disapproval or to force acceptance of certain conditions.” Sounds to me like boycott is a nice word for a “bully.” But does this now mean that one is a bully for not responding positively to a bully’s demand?

Perhaps the editorialist might not have been referring to the Legislature’s response to the bullying by the sexual license crowd. Maybe he only meant that the Legislature was a bully for not forcing counselors to violate their conscience. But that sounds like what a bully would try to do, too.

Either way, it now appears that those who resist a bully or respect another person’s conscientious convictions are bullies.

If that’s what it now means to be a bully, then Target, which has refused to bow to the boycott of its stores and tells me I must violate my convictions regarding sexuality and privacy if I want to shop in their stores, is now a bully.

I can’t wait to read the editorial that condemns Target as a bully for not going back to its old bathroom policy that designates bathrooms based on biology instead of psychology. But I have a feeling I’ll be waiting a long time for that editorial.


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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American Counseling Association Needs Counseling Over Counseling Bill

When Gov. Haslam signed into law a bill that allowed professional counselors to make referrals under certain conditions, the American Counseling Association (ACA) started to come emotionally unglued. It would be funny if it weren’t the very profession that is supposed to counsel individuals who are coming unglued.

The bill was no big deal, really. The bill put the law in Tennessee exactly back where it was as recently as mid-2014 and where it had been for decades. You read that correctly. The bill put the law regarding referrals by counselors right back where it had been for decades and absolutely no other provision in the law changed at all.

In fact, the law still says, “Counselors do not condone or engage in discrimination against prospective or current clients, . . . based on . . . age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital/ partnership status, language preference, socioeconomic status, immigration status, or any basis proscribed by law.”

So, given that specific provision in the law expressly prohibiting discrimination, why did the Human Rights Campaign call the bill the “Counseling Discrimination Bill”? And why did the ACLU say, “This measure is rooted in the dangerous misconception that religion can be used as a free pass to discriminate”?

Because they can’t tolerate anyone who does not share their values. And that’s why the ACA is now “weighing” whether it should cancel its annual convention scheduled for Nashville in 2017.

But wait, how could they even think about doing that?

According to the ACA, “[C]ounselors need to bracket—set aside—personal values that are not in line with the legitimate counseling goals of the clients.”1 The ACA says, “[B]racketing revolves around the counselor’s ability to take his or her own personal values and set them aside—suspend them.”

So why isn’t the ACA “bracketing” its values and “suspending” them, demonstrating that it can practice what it preaches?

The simple answer is because they are hypocrites. They operate according to their principles but will show no mercy to those who operate by different principles. How pious of them to say they accept all people, except for those who disagree with them!

But that’s not all that’s wrong with the ACA’s threat to take their convention business elsewhere. The counselors who serve on the ACA’s national board seem to be exhibiting petulant, demanding, intolerant, and manipulative behaviors, ironically the kinds of behaviors I suspect most of them would counsel their clients against.

Their threat also looks a lot to me like a kind of “referral,” saying we don’t want to “do business with you,” the very thing they say is discriminatory if its based simply on a difference in values and beliefs. And, of course, that difference is what’s at the bottom of their threat.

Not only that but leaving Nashville in the lurch after booking the event seems to be analogous to a violation of ACA Ethical Rule A.12, which states, “Counselors do not abandon or neglect clients in counseling.”

Furthermore, it sounds to me like the ACA is “abandoning” the city of Nashville because of something somebody else did, the state Legislature. I think in professional counseling jargon that’s called “transference,” an emotional phenomenon by which emotions related to one person are transferred to another. It’s a phenomenon for which counseling is appropriate.

I guess what I’m trying to say was summed up well by what a board member of the Tennessee Chapter of the ACA said of the national group’s threat to take their convention and go home: “I think we have an opportunity to set a different expectation where, if you disagree with somebody, you don’t turn your back on them. You sit down and you talk about it.”

In other words, these guys at the national level need to practice what they preach; they need to sit down and get some counseling.

NOTES
1. “New Concepts in the ACA Code of Ethics—Interview with Erin Martz & David Kaplan.” Ms. Martz is the ACA Director of Ethics and Mr. Kaplan is the ACA’s Chief Professional Officer.


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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Legislation of the Year

Hundreds of bills have been enacted into law over the last few months and, of course, even more got flushed down the proverbial gender-neutral toilet. The media has blown up stories over bathrooms, counselors, Bibles, and guns, but I think one of the best bills passed this year is one you never heard of. It could prove to be very important in controlling state government. And its potential impact became even more apparent by the Fourth Circuit’s “bathroom bill” ruling this week.

Try to stay calm as I tell you that the bill made changes to the Uniform Administrative Procedures Act. How, you think, could a person like me be excited about something as boring and irrelevant sounding as administrative procedures? I’ll tell you what the bill did that is so good, but you have to understand why the regulation of administrative procedures is so important.

In case you don’t know, administrative rules and regulations issued by government agencies are increasingly subversive of representative government.

The best, most current example is what has happened with Title IX. When Congress enacted Title IX, it prohibited discrimination in educational opportunities on the basis of sex. But Congress left its job undone (as is par for the course anymore), because it didn’t spell out how the law applied in a variety of situations, like with bathrooms and locker rooms.

So the U.S. Department of Education (DOE) started promulgating regulations to “interpret” the law, and those regulations have the force of law the same as if voted on by Congress. Congress lets DOE and its other agencies run wild.

For example, for two years Congress has let the Department of Education run around telling schools that the word “sex” in Title IX really means “gender identity.” Now the Fourth Circuit Court of Appeals said that what the department has been saying goes as law unless Congress does something to change that in the future (which it won’t).

But unlike Congress, Tennessee’s Legislature has done something about agency regulations. Except in certain instances, agencies must bring their rules and regulations before the House and Senate Government Operations Committee for review. When I was in the Senate (then controlled by Democrats), they were affectionately called the Government Oops Committees, because they had no power to do anything and consequently did nothing.

That has changed in recent years as the committees have increasingly used their power to discontinue agencies to “encourage” them to make changes. That has been good, but Senate Bill 2389/House Bill 2068 literally takes some power back from the government agencies.

First, the agencies can no longer just say to the committees that they need some regulation and explain why. The agencies must “demonstrate [to the committees], by convincing evidence, that consideration of [certain] factors . . . in their totality, justifies the continued existence of an agency rule.”

Those factors now include such things as proving that “the rule is necessary and essential for the agency to serve persons affected by the rule” instead of just necessary for “public policy considerations,” the old law. The agency must show that “the rule will result in economic efficiency for persons served by the agency and persons affected by the rule.” In other words, the question now is more whether the regulation is good for us, not the agency.

But the new law also gives the Government Operations committees a new power. In the past, the committees could vote to ask the agency not to adopt a rule, but that was it. Now the committee can vote to request that the General Assembly repeal the regulation. This isn’t huge, but a vote of a 19-member committee directed to the 99 members of the General Assembly to the effect that a regulation should be repealed will carry a lot more weight in the consideration of legislation to repeal that regulation than if the legislation was simply filed by an legislator unhappy with the regulation.

The Legislature beginning to assert its control over government agencies that can pour out rules and regulations faster than citizens can keep up with them is a good first step toward restraining government and putting government back in the hands of those who are more accountable to the people, our legislators instead of bureaucrats. Thank you, Sen. Bell and Rep. Daniel for bringing this legislation.


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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What’s Truly Historic About Ron Ramsey’s Time in Office

For eight or nine years, I had dinner with Lt. Gov. Ron Ramsey once a week on average during the five-plus months that the legislative sessions lasted. So when he announced this week he was not going to run for reelection, it brought back a flood of memories and history that few know and fewer, if any, even remember.

Ron (readers, pardon me for my informality, but I’m writing about my friend) and I talked a lot about issues and caucus matters when Republicans were the minority in the Senate. During the last two years of the Sundquist administration, a frequent topic was keeping our state income tax free and how the income tax had divided our caucus.

Ron and I felt that we needed stronger leadership in the caucus to oppose an income tax, but there were only two leadership positions available to the minority caucus—leader and caucus chair.

Given the Republican leader’s years of service and expected retirement in two years, our thoughts turned toward having a new caucus chair, the current chair being inclined toward supporting an income tax.

I didn’t really want to run for caucus chair for a number of reasons and, for those same reasons, I didn’t want to “move up the ladder” to run for caucus leader in two years.

But since Ron was interested in running for leader in two years, we settled on me running for caucus chair. He would run for leader two years later without opposition from me. I sent out a letter to the caucus announcing my interest in the position.

A few days later, Ron called. He said that someone had asked if he would consider running for caucus chair. He said that, on second thought, he would like to run. That was fine with me, and I withdrew and gave my support to Ron.

The anti-income tax members of our caucus prevailed in a pretty close vote and Ron became the caucus chair. With that, everything began to change.

What changed was what everyone now knows as Ron’s mantra, “It matters who governs.” Up to that point, Republican leadership in the Senate had reached a truce with Democrats under what was known at the “Wilder Coalition.”

For those who don’t know, the Wilder Coalition came together when Democrats tried to unseat then Speaker John Wilder, a Democrat, because he wasn’t Democrat enough. But he remained speaker when a few Democrats loyal to him joined the minority of Republicans to cobble together the 17 votes he needed to be elected speaker.

Speaker Wilder treated the Republicans pretty well, considering they were the minority party, giving Democrats only a one-vote majority on all the committees and letting Republicans chair some of the more minor committees. In sort of an unspoken truce, Republican senators didn’t ever try to defeat an incumbent Democrat. No one recruited challengers to Democrats, and those who decided to run on their own were on their own.

Ron was not willing to be in the minority, so he began raising more money and recruiting candidates to run against Democrats. When Ron did that, Democrats were shocked. The Wilder Coalition continued because Republicans were still in the minority, and Democrats could still not get rid of him because Wilder still had his loyalist.

Perhaps the Wilder loyalist never thought they’d see the day when Republicans could win enough Senate seats to be the majority party, or perhaps it just didn’t matter because personal loyalty to Wilder meant more to them than party control. But that was the beginning of the end for the Democratic Party in the Senate and eventually in the state Legislature.

A few years later, the Republicans had 17 of the 33 seats. Two Republican senators remained loyal to Wilder so he remained speaker, but when he did not give Republicans chairmanship of a majority of the committees or even chairmanship of the two biggies, Finance and Commerce, the coalition was sure to end. Two years later it did.

That’s some history about Ron’s journey to speaker and why his tenure is rightly seen as historic. Now I want to close with something about Ron’s retirement that is historic in another sense.

Few people attain to such a powerful position in political leadership, and if we look to modern history, most who leave their political positions do not leave of their own volition. Power is just too hard to give up. In the House, Speaker McWhorter became governor and his successor as speaker, Jimmy Naifeh, was defeated as speaker when he couldn’t pull together his own form of a Wilder Coalition. Of course, Speaker Wilder was defeated.

At the end of the day, the ultimate values I believe Ron ran for office to protect were the values that called him home. He listened when they called and let go of political power. That is historic. For me, it defines who he really is. And it’s a great example for others to follow.

Godspeed, my friend. Enjoy your family.


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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