a tortoise and a hare

The Lawyer and the Layman: A Modern-Day ‘Tortoise and the Hare’ Tale

I couldn’t help thinking about Aesop’s The Tortoise and the Hare as I recently sat through a deposition in connection with a contest over who gets to make laws under our Constitution. It was fun to listen in on the conversation as the layman schooled the unwitting lawyer. Keep reading and you can “listen in,” too.

The contest is between the powers of the states and, in particular, the power of their legislative bodies to make law versus the powers of the United States Supreme Court. It is being played out in a lawsuit that our organization’s Constitutional Government Defense Fund filed in February 2016.

The “race” got started in earnest during the recent deposition of a county commissioner, one of the two people who filed a lawsuit challenging the Supreme Court’s authority to require our county clerks to issue marriage licenses to same-sex couples.

If you think the Supreme Court in Obergefell v. Hodges, decided in June 2015, authorized Tennessee’s county clerks to issue marriage licenses to same-sex couples, as do most law school graduates, the “hares” in this story, then you need to keep reading. You might learn something from the “tortoise” in this story, the “lowly” septuagenarian county commissioner whose formal education didn’t extend beyond high school.

To appreciate the exchange between the lawyer-hare and the county commissioner-tortoise, you need to know that the Obergefell Court articulated two holdings.

The holding the lawyers focus on is the one that said same-sex couples have a right to marry under the marriage licensing statutes of the states.

But the holding the lawyers, in their fawning servility to the Court, seem to overlook is Obergefell’s holding that licensing statutes are “invalid” if they only authorize the issuance of marriage licenses to opposite-sex couples. And Tennessee’s marriage licensing statutes do just that, along with the statutes in about 40 other states.

Now, here are actual key exchanges in the deposition, condensed for the sake of space:

Lawyer: Do you agree that you are bound by the decisions of the United States Supreme Court, even though we may disagree with them vehemently or not?

Commissioner: Well, I do to a certain point.

Lawyer: When do you think we should do something different from what the United States Supreme Court says we should do?

Commissioner: Well, first of all, the Supreme Court didn’t make the law; is that correct? They reviewed it.

Lawyer: Okay. And if you don’t obey the law, then have you violated your oath of office?

Commissioner: You have, but like I said, they don’t make law. They review it. . . . And our legislators make our laws for us.

Lawyer: And we follow those even if the Supreme Court—

Commissioner: We should follow the laws that our legislators make. And I don’t know of any law that the legislators have made except the fact that they’re working on this situation.

Lawyer: Have you tried to get them [legislators] to say we want you to issue—even though the Supreme Court has already said it, we want you to say that the clerk should issue marriage licenses to homosexuals.

Commissioner: We want the legislators to say you can or you can’t.

Lawyer: So we don’t have to rely on the Supreme Court already saying that?

Commissioner: Yeah. Right. We want the legislators. They’re the lawmakers. And we want—I want them to say if you can or you can’t.

What was the commissioner saying that the lawyer didn’t seem to understand? Simple: “You can’t get a license, Supreme Court, if you hold the license law is invalid. And only legislators can say what the new law is.”

And therein lies the power struggle. The Supreme Court can declare rights all day long, but until the Legislature enacts a new statute in place of the one the Supreme Court invalidated, our clerks are acting without legal authorization.

Obergefell did not and could not authorize our county clerks to do anything, because under the Tennessee Constitution, Article VII, Section 1, only the Legislature can “prescribe” a county clerk’s duties. No court can make nor has any court ever made a legislative body enact any particular law. It doesn’t have that power.

If you ask me, this county commissioner knows more about the Constitution, the law, and the separation of powers than most lawyers with their three years of specialized legal training.

lantern in the snow with "give" buttonIf hares hadn’t put other hares in charge of deciding who wins this contest, I’d sure put my money on the tortoise.

If you enjoyed this commentary, consider giving your special year-end gift today. Any gift, big or small, will help us fight for God’s design for marriage and the family, the sanctity of human life, and your religious liberty in Tennessee! Be encouraged by what Isaiah 60:1 says: “Arise, shine; for your light has come, and the glory of the Lord has risen upon you.” Won’t you shine your light in our state by giving your generous, tax-deductible gift?

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 Martin Luther

The Reformation and the Heresy of White Lives Matter

I’ve been reading about the Reformation lately because next Tuesday marks the date 500 years ago when Martin Luther posted his Ninety-Five Theses on the door of the Wittenberg church, and I couldn’t help but think of a striking connection between a fundamental error of the White Lives Matter movement coming to Tennessee this weekend and the value of one of the reforms stirred by the Reformation.

Diagnosing the Problem Correctly

As with most reform movements, both good and bad sprang from the Reformation.1  But I believe one of its reforms relates to a fundamental error in the Black Lives Matter and the White Lives Matter movements, as I understand them.

The reform of which I speak concerns the Reformation’s return to the Augustinian understanding of the fallenness of humanity. Into the teachings of the Church had crept the influences of the Renaissance, which Russell Kirk described thusly in The Roots of American Order:

[T]he Renaissance amounted, often, to a denial of the Christian understanding of the human condition. The Renaissance exalted man’s egoism . . .

Consequently, one of the positive things the Reformation did was re-emphasize the fact that the problem with the human condition, which encompasses our personal lives and the culture and civilization we produce, is our fallenness, or what theologians call sin.

There is much that can be said about this—and it will be part of Restoring the Vision on November 11th—but by the “Fall of Man,” Christianity has historically meant that something alien to the original good creation has entered into our existence and perverted it. Albert Wolters, in his book Creation Regained: Biblical Basics for a Reformational Worldview, put it this way: “Sin, an alien invasion of creation, is completely foreign to God’s purposes for his creatures.”

The implications of this are manifold, but one is that we see the problems we encounter as something intrinsic to the human condition rather than alien to it.

Again, Wolters states it well in describing the “danger” that comes with blurring the line of demarcation between God’s original creation and the perversion of it through the Fall:

The great danger is always to single out some aspect or phenomenon of God’s good creation and identify it, rather than the alien intrusion of human apostasy, as the villain in the drama of human life.

And that “danger,” it seems to me, is demonstrated in what I understand to be at the heart of the “lives matter” movements, namely, that some group of people is the problem, some ethnicity, or some difference in skin color produced by different levels of Melanin. In other words, some aspect of creation itself is our problem.

Diagnosing the Solution Correctly

Getting the problem wrong, however, necessarily leads to the wrong solution. If our solution is no longer something alien to our environment, then it must be our environment. That means if we can just change our environment, our problem will be solved. (That’s also why politicians put so much emphasis on programs addressed to changing the environment that “victimizes” us.)

And this is where the White Lives Matter movement gets it all wrong. Removing people of a different color or ancestry from around them (or our country) will not solve their real problem. All that “solution” does is create more problems.

The Question We Need to Ask

And that’s why I ask this question, Which came first, Black Lives Matter or White Lives Matter? Be careful; it’s a trick question.

The answer is neither. The Fall and sin came first, and if we don’t address the evil in our own hearts, then we’ll never make any life matter in the way God intended when He created us, not even our own.


  1. As with most reformers, Martin Luther had his faults, but my focus here is on just one part of the theology that the Reformation put back into focus, not the theologian Luther, who said and wrote many things inconsistent with the point I intend to make regarding racial views and attitudes.

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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Alabama's Judge Roy Moore

Is Alabama’s Senate Race a Harbinger of Things to Come?

It seems to me that our country is becoming increasingly chaotic, violent, and fractured. I think I’m finally beginning to grasp what, at root, is happening, and if I’m right, I think the electoral plight of one politician may give us some insight into where we’re headed.

Last year I read this statement written in 1959 by Roland Van Zandt, “America’s French Revolution has awaited the twentieth century.” 1

Was America Rooted in ‘Enlightened’ Thinking?

The context of his observation was that our studies of American history have largely “ignored” the philosophical battle taking place in the latter 1700s between Christianity and ideas of the Enlightenment. While Christianity emphasized a Creator God and the necessity of revealed truth as the foundation for building up a nation and civilization, the Enlightenment held that God, if He even existed, was really irrelevant to everyday life and that reason alone was a sufficient guide in the building up of a nation and civilization.

Van Zandt asserted that America had escaped enough of the catastrophes of the French Revolution that Thomas Jefferson was able “to reassert his, and America’s, continued faith in the philosophy of the Enlightenment” through his assertion in the Declaration that there are “self-evident truths.”

I’ve always liked that statement in our Declaration, but as Van Zandt suggested, I’d never given much thought to the fact that it might rest upon a belief in the sufficiency of human wisdom to know the truth without revelation, and that such a belief would ultimately lead to the irrelevance of that revelation’s God.

The Heart of the Revolution

Then last Sunday afternoon I was reading a book written in 1847 by Guillaume Groen van Prinsterer. I found this statement very fitting given Van Zandt’s statement and the fact that this month marks the 500th anniversary of what is called the beginning of the Reformation when Martin Luther posted his 95 Theses on the door of the church in Wittenberg:

The [French] Revolution ought to be viewed in the context of world history. Its significance for Christendom equals that of the Reformation, but then in reverse. The Reformation rescued Europe from superstition; the Revolution has flung the civilized world into an abyss of unbelief.2

Putting these two statements together, I think we would have this proposition, and it’s a conclusion to which I’m increasingly being drawn: While many of our Founders were professing Christians, the seedbeds of the chaos that unbelief and reliance on human wisdom that the French Revolution produced were planted early in our country’s formative years, and our revolutionary chaos was still to come; it was just a matter of time if we allowed them to take root and grow.

If my conclusion is correct, I think Van Zandt was telling us those seeds took root and grew; he just missed his prediction by about 50 years.

Understanding the Struggle and the Solution

Then van Prinsterer said this, which touches on the political sphere in which I’ve spent most of my adult life:

The [French] Revolution doctrine is unbelief applied to politics. A life and death struggle is raging between the Gospel and this practical atheism. To contemplate a rapprochement between the two would be nonsense. It is a battle which embraces everything we cherish and hold sacred and everything that is beneficial and indispensable to church and state.3

The parallel to what I’ve observed in American politics is compelling. The problem in modern American politics is that those who deny the God of the Gospel and His revelation and those Christians who are perhaps very pious but deny God in the realm of politics as a “practical” matter are largely the ones now governing us.

This problem is reflected, at least in my experience, in the fact that too many, if not most, of our Christian politicians (and too many Christian leaders) are consumed with the attitude of “rapprochement” which, according to Webster’s, means the “establishment of or state of having cordial relations.”

I don’t think van Prinsterer meant that incivility in discourse is required. Rather, I think he meant that if cordiality means we will seek solutions to our problems only on the terms and conditions imposed by the purveyors of unbelief and practical atheism, we will never stem the tide of the “French Revolution” that is swelling in our country.

How Would You Vote?

It is for that reason I was captivated by Judge Roy Moore’s public statement the other day:

This is an awful moment for our country. Should I keep back my opinions in such a time as this, I would consider myself guilty of treason toward my country and an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.4

While other politicians in Washington may believe what Moore believes, he was willing to say it—that there is a “majesty of heaven” to be revered and that he will bow before none who would seek to ascend to that high place.

Roy Moore’s politics is the politics of “belief” in the God of heaven and not “unbelief,” whether of the real or practical kind.

Now I ask this question: Would his statement make you more or less likely to vote for him or for a politician in Tennessee like him?

Your answer might just provide a clue as to which side you are on in the “struggle . . . raging between the Gospel and . . . practical atheism.” And if enough Americans say his statement would deter us from voting for him, then maybe we better get ready for the revolution.


  1. Roland Van Zandt, The Metaphysical Foundations of American History (Mouton & Co. 1959), p. 72.
  2. Guillaume Groen van Prinsterer, Unbelief and Revolution, p. 14.
  3. Guillaume Groen van Prinsterer, Unbelief and Revolution, p. 7.
  4. “Alabama’s Roy Moore to Christian Summit: We Need to Make America Good Again,” FOX News, http://www.foxnews.com/politics/2017/10/13/alabama-s-roy-moore-to-christian-summit-need-to-make-america-good-again.html.

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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expecting mother shows ultrasound image

What Makes the Pain-Capable Unborn Child Protection Act a Good Law?

I found very interesting some of the arguments made by members of the U.S. House of Representative in favor of the Pain-Capable Unborn Child Protection Act. Those arguments reminded me of a debate I had on Amendment 1, the pro-life amendment on the ballot back in 2014. Much is revealed by the different approaches to the issue of life.

Getting to the Fundamental Issue

In 2005, a Jewish women’s political organization came to my legislative office to discuss Amendment 1. They said they appreciated my religious convictions regarding Amendment 1 but didn’t think I should allow my religious views to influence public policy.

I told them that I would be happy to speak with them about the issue without reference to my religious beliefs, so I suggested that if we could come to an understanding of what it was we were aborting, then we could more easily discuss the moral and ethical issues surrounding the medical procedure involved with abortion.

To that end, I asked them, “What is it we are aborting? Is it a human being?” To make a long story short, they said “it” was a “potential human being.”

I then probed the meaning of the word “potential.” I asked if, by potential, they meant there was a point during gestation in which the essential nature of that which had been conceived changed from something other than a human being into a human being. To bring clarity to the question, I then asked, “Although in every known instance of pregnancy a woman has delivered a child, a human being, by ‘potential human being’ did you mean a woman might deliver something else?”

Their answer, “Well, no. Of course not. What we mean is that under the Talmud, until a baby is quickened…” and it was at this point I cut them off. You see, they had turned to their religious beliefs to answer the fundamental question, “What does it mean to be human?”

Is Alleviating Pain Fundamental?

I share that story because, in supporting the Pain-Capable Unborn Child Protection Act, we must not let the act’s opponents avoid the fundamental issue: Are we talking about a human being? In other words, is the bill good simply because we shouldn’t inflict pain on an unborn child, or is it good because we are talking about the death of an unborn child, whether he or she feels pain or not?

This is critical. If an unborn child could be painlessly given an anesthetic prior to the abortion, would that then make it okay? If pain is the only issue, then the answer is yes.

Why a Biblical View of Life Matters

In our effort to achieve a particularly good result, the pro-life community must not lose sight of its goal, namely, a restoration of a biblical understanding of what it means to be human, a view of humanness that can alone stand at all points in opposition to the various reasons given by abortion proponents for their view.

We cannot win the long war for life if we make our arguments only on the premises or grounds that abortionists get to set ahead of time. If all we can argue is “science,” then we’re not arguing on the only ground that will make a fundamental difference, long-term, in the argument.

I’m reminded of what Abraham Kuyper, a noted theologian and former Prime Minister of the Netherlands, said in the late 1800s:

There is no doubt then that Christianity is imperilled [sic] by great and serious dangers. Two life systems are wrestling with one another, in mortal combat. Modernism is bound to build a world of its own from the data of the natural man, and to construct man himself from the data of nature; while, on the other hand, all those who reverently bend the knee to Christ and worship Him as the Son of the living God, and God himself, are bent upon saving the “Christian Heritage.”

From the first, therefore, I have always said to myself,—”If the battle is to be fought with honor and with a hope of victory, then principle must be arrayed against principle; then it must be felt that in Modernism the vast energy of an all-embracing life-system assails us, then also it must be understood that we have to take our stand in a life-system of equally comprehensive and far-reaching power.

Similarly, respect for human life and abortion are “wrestling with one another” in what is truly “mortal combat” with respect to the unborn. Abortionists have a view of humanity that they have “constructed” in which they can decide when human dignity attaches. The pro-life community has a view of humanity grounded in the transcendent Creator God and human dignity is grounded in having been made in His image.

Consequently, “if the battle is to be fought with honor and with hope of victory” as Kuyper writes, then we must “take our stand” in a “life system” in which the pro-life’s fundamental principle is made to stand against that of the abortionists. We must never lose sight of that fact.

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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Las Vegas sign and automatic rifle

Diagnosing the Las Vegas Massacre

Twenty-four years ago, I was diagnosed with a physical malady with which I would live the rest of my life. I couldn’t help but think about that as I read about the shooting earlier this week in Las Vegas and some of the reactions to it.

Diagnosing My Condition

It was in April 1993 that I first experienced an itchy scalp. My barber suggested a change in shampoo and turning down the hot water in my shower a bit. Didn’t help; it got worse.

Later that year I went to my first dermatologist. He gave me a topical cortisone cream for the rash. Relief came only temporarily. The condition returned every time once the cream was gone.

I then turned to a new dermatologist in town who had been an internist. It was his background in internal medicine that I believe helped him diagnose what turned out to be an intestinal disorder for which the rash was simply an external manifestation. A change in diet was what I needed; the condition persists, but it’s manageable if I watch certain foods.

I tell that story because I can’t help but wonder if we’re not misdiagnosing the problem manifested by the Las Vegas shooting. I wonder if our malady lies deeper than what appears on the surface.

Diagnosing the Shooting

On the surface, much of what I read in response to the Las Vegas shooting was about gun control. A country music performer who had always opposed gun control now says it’s needed.

But basing a diagnosis or remedy on public opinion is tricky. A few days earlier, a number of people in Nashville were praising the right to carry because a young man had used the gun he retrieved from his car to hold hostage a man who began shooting people in his church.

It could be that the Las Vegas shooter was simply mentally deranged, and had he not had a cache of guns, had there been more control over the sale of certain types of guns, he’d have found some other means by which to kill innocent people.

Three years ago, a different suicidal man here in Tennessee intentionally drove on the wrong side of the freeway looking to kill himself in a head-on collision. He succeeded, and killed a good friend’s wife and daughter in the process.

Unstable people do unstable things, though the number of people they may be able to harm at any one time may be greater or less.

But the worst and perhaps most telling responses came from two members of the U.S. House of Representatives and a Vice President of CBS. The former callously refused to acknowledge a moment of silence for the victims because of the Republican Party’s views on gun control, and the latter said, by text message, “I’m actually not even sympathetic bc [sic] country music fans often are Republican gun toters.”

Diagnosing the Diagnosis

When I read comments like those, spoken at a time when so many are grieving, I can’t help but believe we’ve misdiagnosed our problem.

I believe our problem is rooted in the fact that our culture, on the whole, has lost a sense of the sacredness of human life, resulting in callousness toward it. And how could we not have such a loss when we have made ourselves the measure of all things and deny that there is a Transcendent Sacred in whose image our lives have been created?

I know the three individuals I have cited do not speak for everyone and perhaps only for a small percentage of us, but is their indifference for life reflected in the timing of their heartless comments any different, in principle, from that of the Las Vegas shooter?

Jesus said, “You have heard that it was said to those of old, ‘You shall not murder,’ and whoever murders will be in danger of the judgment. But I say to you that whoever is angry with his brother without a cause shall be in danger of the judgment” (Matthew 5:21, 22 NKJV).

We know the answer to my question about how indifferent the two U.S. Representatives are regarding the value of all human life. On Tuesday they both voted against the Pain-Capable Unborn Child Protection Act, H.R. 36, which would ban abortions from being performed 20 weeks or more after fertilization, except when the pregnancy is a result of reported rape or reported incest against a minor, or is necessary to save the life of the mother.

And if we don’t see a text or comment from the CBS executive urging the U.S. Senate to concur in the House’s vote, then how ironic it will be that she prefaced her text about the Las Vegas victims this way, “If they wouldn’t do anything when children were murdered, I have no hope that Repugs will ever do the right thing.”

Silence from her on H.R. 36 will probably mean, as with the two Representatives, that only the murder of innocent children in our schools, not in the womb, matters to her.

Yes, when we’re indifferent to killing innocent children in the womb or killing innocent people in the streets of Las Vegas, I think we’ve misdiagnosed our problem. It’s more than skin deep.

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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