Father holding the hand of his infant

A Pro-Life Decision 17 Years in the Making

On Tuesday, the U.S Court of Appeals for the 6th Circuit upheld the vote of the people in 2014 in favor of Amendment 1 to the Tennessee Constitution. The amendment essentially reversed a decision by the Tennessee Supreme Court in 2000, holding that abortion was a “right” under our Tennessee Constitution. The 6th Circuit’s opinion was not just a legal version of a WWE SmackDown to the pro-abortion plaintiffs and the federal district judge who agreed with them, but it was a reminder to me about how to think of another issue on which I’m working.

Court Exposes Baseless Legal Arguments

There was much in the court’s opinion to like if you are pro-life or if you simply believe in the U.S. Constitution and abhor the philosophy of those judges who like to figure out the result they want and then reason backward to get there. However, my two favorite lines were these summations of the plaintiffs’ case:

Plaintiffs’ arguments amount to little more than a complaint that the campaigns in support of Amendment 1, operating within the framework established by state law, turned out to be more successful than the campaigns against Amendment 1.

Their grievance in this case thus appears to be driven by regrets, not so much that the State officials’ actions infringed their rights, but that their ‘adversaries,’ supporters of Amendment 1, may have campaigned more effectively than did opponents of Amendment 1.

I think it would be fair to interpret these statements something like this: “You are just sore losers. The other side did a better job getting its message out, so, when the election was over, you ran to the courthouse looking for a friendly judge who would bail you out despite your lousy legal arguments.”

If that sounds a bit blunt, I hope you’ll cut me some slack since I spent a good portion of my life working on this, filing the original constitutional amendment 17 years ago this month. But that fact, along with the court’s contrast between the two political campaigns, reminds me to never give up on things of fundamental importance and work hard, because, in time, God just might vindicate that which is fundamental, in this case, the sanctity of life, of which He is its Author.

The Long Road to This Week’s Victory

This week’s legal victory, however, must not be seen in isolation but in the larger context. I wish space allowed me to convey to you the twists, turns, pitfalls, and potholes that were encountered just by me during the ten years in which I worked to help get the amendment through the Legislature. I’m sure my friends at Tennessee Right to Life have their own compelling stories. Suffice it to say, at times the effort was frustrating, discouraging, and downright tiring.

I’ll never forget, though, Lt. Gov. Wilder asking then Sen. Ron Ramsey and me to stop pushing the amendment, because it was never going to pass the Legislature and our efforts would only create friction and division among a then rather congenial group of senators. We politely declined.

To be honest, a lot of people naturally saw the effort as rather hopeless when this process started. Democratic majorities controlled both the House and Senate, and the amendment had to be approved by a vote of two-thirds of both chambers. In other words, we would need 66 votes in the House, and Democrats then held 59 of the seats!

I think my friend Ron Ramsey would agree with me on this, but it wasn’t assurance of eventual victory that propelled us to press on despite Lt. Gov. Wilder’s request, but rather a conviction that fighting to protect innocent, unborn lives from death was worth the effort and any collegial discomfort we might experience.

The Encouraging Reminder I Needed

And that brings me to today and another issue on which I’ve been working now for two years.

Many think of the efforts begun by the Family Action Council of Tennessee in January 2016 to challenge the legal effect of the U.S. Supreme Court’s decision regarding government-licensed marriages of same-sex couples in the same way they thought of the abortion amendment—we’re tilting at windmills, we can’t win, the marriage ship has sailed, and so on. That may turn out to be the case, but if a Christian, pro-marriage organization will not defend to the end that form of union between man and woman that alone mirrors the very image of the Triune God and that embodies what is real and true about the nature of marriage, then what is our reason for existence?

Who knows? Maybe if we, along with a handful of others, don’t give up and we continue to work hard, God just might, in time, vindicate that which He ordained and holds dear—marriage. After all, that’s what happened with Amendment 1 on Wednesday.

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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Statue of Liberty, crosses, and the Tennessee flag

A Political ‘Dual’ to the Death

In two types of situations over the last three months, I have had conversations with four different evangelicals, each with a strong Judeo-Christian moral compass. If their thoughts are close to being representative of how a majority of evangelicals think about politics and elections, then evangelicals will be largely to blame for the death of religious liberty and Judeo-Christian values in our state.

All of the individuals with whom I spoke are strong supporters of our organization and its mission, which is to promote and defend within Tennessee religious liberty and God’s design for human sexuality, which is expressed in marriage between a man and a woman and the family that that relationship produces. They all lament the moral direction in which things are headed and the growing threats to the Christian’s freedom to live out their beliefs in the marketplace.

Situation No. 1—Conversations With Two Citizens

It’s not unusual when I run into folks who know me that they tell me what they think about various political things. So, it wasn’t surprising that two friends brought up the governor’s race and told me of their preferences.

Both were supporting different candidates, but what was interesting is that neither of those candidates is particularly friendly to our organization’s issues as best I can tell. In fact, based on what I do know at this point, I suspect neither candidate would be particularly supportive of the kind of legislation we initiate.

For the one citizen, it was the candidate’s views on economic development that was decisive, as if the disintegration of families and moral values has no effect on the economy. For the other citizen, the person forthrightly acknowledged that his preferred candidate’s positions on social issues were weak to non-existent, but he said that was “understandable” since those issues are controversial. I guess that person thought someone other than a governor should lead or take a stand on the controversial stuff.

Situation No. 2—Conversations With Two Politicians

The other scenario involved two different politicians. Each was approached concerning various legislative ideas.

One politician’s response to the proposed legislation focused on how it would be portrayed by the liberal local media and whether, going into an election cycle, that negative publicity could be offset sufficiently by constituents who might approve of the legislation. The other politician made it clear that voters were tired of politicians who were against things and didn’t want to talk about legislation that prevented what she conceded was bad.

In both situations, doing the right thing was secondary to doing the politically expedient or acceptable thing. The problem in the latter situation was compounded by the false belief that one could be for something and want to see it flourish without being against that which undermines its flourishing.

The ‘Dual’ of Death

The problem in each of these two situations is what philosophers would call “dualism.” In general, dualism is the belief that, for some particular domain, there are two fundamental kinds or categories of things or principles. In this particular instance, it is usually either a belief that moral values are fundamentally personal and politics is fundamentally not or a belief that Christianity, with its attendant values, is spiritual and politics is secular.

Dualism allows a Christian to say that I am personally for certain values, but I can vote for people who do not support those values because Christianity and the beliefs that guide my personal life are fundamentally different from the beliefs that guide my secular and political life.

When one walks out of the evangelical pew on Sunday and takes that dualistic view of reality into the voting booth or into elected office, then the moral values and the religious liberty he or she professes to value will be undermined at every turn by our public policies. Voters elect those who undermine those values by acts of commission or omission and politicians who will stand by and let them be undermined.

Both will lead to those things they say they value dying out in our public consciousness, even as is now happening.

To paraphrase Nietzsche’s famous “God is dead” quote, if this dualistic thinking is typical of evangelicals, then they will be able to say, “Judeo-Christian moral values and religious liberty are dead, and we have killed them.”

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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The year 2018 with the Tennessee flag as part of the "0" against fireworks background

Putting the ‘New’ in the New Year

As we come to the end of the year, ringing out the old and ringing in the new has real meaning to me when it comes to what’s about to happen in Tennessee politics. And if you’re not ready, the ringing could become a loud clanging in your head for years to come.

The “new year” legislative session begins on the second Tuesday in January, as it does every year. That’s not new. But it could be a ringing out of a right-of-center Legislature for a more centrist one in the future, depending on what happens in August and November with the elections.

Of course, calling the current Legislature right-of-center might be generous. It appears, after years of trying, that the Legislature can’t even pass a pilot program to test opportunity scholarships in low-performing schools. Last year, none of the seven senators who voted to keep boys out of the girls’ locker rooms the year before would even make a motion to discuss and debate a more scale-down version of the same bill. But maybe that’s because some in leadership prefer to put the emphasis on the last part of right of center.

To get a feel for the “new” that’s coming, one need only look at the changes about to take place in the state House. Since every bill, to become law, must pass the state House, a shift to the left there could change everything.

In the state House, 15 members have already announced their retirement after this session, two more are leaving to run for the state Senate, and one has already moved to the Senate (by County Commission appointment). In other words, 18 of 99 seats will be changing hands in 2018, and that doesn’t count how many might not return because they lose a primary challenge.

But the biggest potential change in the House in 2018 will be the change in Speaker, brought about by Speaker Beth Harwell’s run for governor. The Speaker appoints all the committee chairs and decides how conservative, moderate, or liberal a committee will be based on whom he or she assigns to the committee.

Last year Speaker Harwell held onto her speakership against a more conservative challenger, Jimmy Matlock, now running for the U.S. House, by winning her caucus’ nomination by a vote of 40-30. The outcome of the caucus’ nomination for 2018 will turn on what happens in August.

At least 13 of the Republicans who voted in that caucus election are retiring. Whether Republicans will vote for a moderate or conservative Speaker of the House in 2018 will depend on how many of those seats swing from moderate to conservative and vice versa, and it may not take but a change of four or five, depending on what happens with some incumbent Republicans who may face primary challenges.

Of course, that’s not going be all the “new” that 2018 rings in. We will have a new governor. While I’m not ready to name names, I can say that not even all the Republican candidates are true conservatives in my estimation.

A governor wields a lot of influence, and, unfortunately, I’ve seen moderate governors move a conservative legislator to his way of thinking. I’ve never seen a governor lean on a fiscal or social conservative to stay the course when under pressure to move to the left.

What this means for you is that you better know who you are voting for in 2018, and we’ll do what we can to help. We will, again, be scoring incumbent legislators’ votes, but with so many incumbents retiring, finding a good way to evaluate those in a primary for those open seats will be a challenge. They will have no voting record, and increasingly candidates don’t like to fill out surveys that force them to talk about issues they would rather ignore.

Figuring out how to evaluate these primary candidates is one of the things I’ll be working on over the next few months. One possibility is enabling one of the organizations for which I work, Family Action of Tennessee, to do something new by making endorsements in some key races. If you have thoughts on that, let me know.

But one thing is for sure: The new year is going to bring a lot that will be new to the political world in Tennessee.

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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Smiling woman holding a gift surrounded by a holly wreath and Christmas presents

How to Wish the Politically Correct Crowd a Merry Christmas

The politically correct crowd insists that it is somehow not correct to wish people a “Merry Christmas.” Instead, we are supposed to say something like “Happy Holidays.” But something’s always troubled me about that. And now I’ve put my finger on it. I’ve put all my legal skills at parsing words into sorting out this complex problem, and perhaps there is another way to express ourselves.

I know that the problem with “Merry Christmas” is that those who extend that greeting are supposedly hoping people find merriment in a Christian religious observance. And I guess they think the greeting is some attempt to impose on them the greeter’s religion. Of course, if you think that at this point our culture, on the whole, really perceives Christmas as a religious observance more than a secular holiday, then you may not have noticed how many people get up at 3 a.m. on Black Friday to usher in the Christmas season at “services” offered at the mall.

I know that wasn’t very politically correct, but onto the business at hand—what greeting do you give people at this time of year? The politically correct crowd that is constantly worried about offending someone’s feelings and sensibilities suggests we say, “Happy Holidays” to respect those who celebrate Kwanzaa or Hanukkah or maybe something else I’ve forgotten.

But what about those who, like Jehovah’s witnesses, recognize no holiday this week? Doesn’t “Happy Holidays” impose on them our beliefs about the celebratory nature of the season? So, I think that in order to be tolerant and sensitive to other’s feelings, we should just say something like “Enjoy the Season.” After all, it is a season of the year for everyone.

Ah, but winter is not that enjoyable to a lot of people. Rather, the cold makes them feel miserable and being light-deprived by the short days makes them feel depressed. But I guess that’s a good reason to wish they could enjoy the season, because wouldn’t we rather them enjoy the season than be miserable?

But, wait. That creates another problem. Why would I want to try to tell people how they should feel? After all, my feelings are just that, my feelings. Why should someone else try to tell me how I should feel? That’s not very sensitive. We should be affirmed in whatever feelings we may have and others should respect that.

Trying to be the most politically correct person that I can (which, you readers know, is my life’s ambition), let me suggest the following to those of you who really want to avoid any offense. Maybe you should not say anything and just print this on little cards and hand them out:

Please feel however you want to feel about this time of year, or if you prefer, please do not feel like you have to have any feelings at all about this time of year or feel like you have to have any feelings about any other time of year if you do not feel like feeling anything right now. And, of course, feel free not to feel anything at any time of year if that’s what you feel like, in which case, I hope nothing or no one interferes with how you are feeling or not feeling at the time you choose to be feeling or not feeling something.

To all the rest of you willing to risk being offended, I say, “Merry Christmas!”

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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Bradley County, Tennessee, pinpointed on an outline of the state and photos of David Fowler with the judge in the December 13, 2018 oral arguments

Will Tennessee Judge Be Crazy Like a (Judge) Fox?

The phrase “crazy like a fox” was popularized by humorist S.J. Perelman’s 1944 book by the same name. It describes a person who looks foolish but is actually very smart or clever. Last Friday, a lot of people may have thought Arkansas Circuit Court Judge Tim Fox looked foolish when he enjoined Arkansas from issuing birth certificates to anyone. At Wednesday’s oral argument on a case pending in Bradley County, Tennessee, the essential question became whether the Circuit Court judge in that case should do the same thing with respect to marriage licenses in Tennessee.

Reviewing the Arkansas Birth Certificate Case

On June 30, 2017, in a case talked about by few other than yours truly, Pavan v. Smith, the United States Supreme Court ruled that Arkansas’ general birth certificate law was invalid because it unconstitutionally allowed a husband to be presumed the father of his wife’s child and did not allow a woman to be presumed the mother of her wife’s child by artificial insemination.

Don’t read that too many times or your head will hurt trying to figure out how a woman could be presumed to be the mother of another woman’s child. But that’s what happens in a Justice Kennedy-controlled Supreme Court where everyone gets to live in the universe of meaning he’s created.

Anyway, after that decision, the Arkansas Supreme Court ordered the birth certificate law “stricken.” Then, it ordered the trial judge, Tim Fox, to “issue such injunctive relief as is necessary” to “ensure same sex couples are assured the same right” to a birth certificate as opposite-sex couples.

But Judge Fox had a problem—there is no law! How does the state issue or record birth certificates for anyone—let alone opposite-sex couples whom the law didn’t cover in the first place—if there is no longer a law at all governing who can get one?

In his order on Friday, Judge Fox said he was “hopeful that the executive branch may have the authority to issue . . . curative executive regulations,” but he left that issue to another day.

As a consequence of the judge’s order, the governor ordered the state to issue birth certificates to all married people. But how can he do that? He is using an executive order to replace a statute, not “cure” one. The separation of powers allows only the Legislature to replace an invalid statute with a new one.

Then the judge said that “if the executive branch does not have the authority” to fix the problem (which he doesn’t if we are all honest), then he said the state is “enjoined”. . . from issuing or recording any more birth certificates for anyone “until such time as the General Assembly can meet, in special or general session, and pass curative legislation.”

Will Tennessee’s Judge Do the Same?

What winds up happening in Arkansas remains to be seen, but this is the very same issue that I argued Wednesday in Bradley County Circuit Court. If our marriage license law violates the Supreme Court’s holding in Obergefell v. Hodges, in which it held that marriage statutes limiting licenses to a male and female were invalid, what is the law in Tennessee? Our statute says that marriage licenses can be issued only to “male and female contracting parties.” Seems to limit marriage licenses to males and females, doesn’t it?

On Wednesday, Tennessee’s attorney general conceded that our marriage licensing statute, if interpreted using the ordinary and natural meaning of the words “male and female contracting parties” would be invalid.

So, the attorney general essentially argued that the word “and” in that statutory phrase should be replaced with an “or” so that “male or female contracting parties” can be issued a license. But hold on; doing that is rewriting the words of a statute, something the courts can’t do, only the Legislature. It is that pesky separation of powers thing.

But, you say, didn’t the governor tell our county clerks to issue same-sex marriage licenses? Yes, but he has no more power to “cure” the problem in our marriage licensing statute than the governor of Arkansas has to “cure” its birth certificate statute.

What will the Tennessee judge do? I don’t know. But I hope he’s “crazy like a (Judge) Fox” and reminds us all, including our governor and attorney general, that only the Legislature can enact a statute to replace or “cure” one that is invalid.

It’s time state judges begin to restore the rule of law that the United State’s Supreme Court subverted in Obergefell and Pavan and the states quit pretending we have laws we don’t have.

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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