Flushing Down the Reasons Senators Opposed the ‘Bathroom Bill’

Yesterday, the so-called “bathroom bill” (SB 771) was not taken up, even for discussion purposes, because none of the nine members of the Senate Education Committee was willing to make a motion to hear the bill. Keep in mind that seven of the nine members voted for the bill last year.

Do not be taken in by the reasons now being given for not supporting the bill. Here are the most popular excuses for doing nothing to protect the privacy and safety of the children in our K-12 public schools. (That is the only group to whom the bill, with an offered amendment, would have applied.)

ARGUMENT 1:

President Trump’s decision to rescind Obama’s policies made the bill unnecessary.

RESPONSE:

This is not true. President Obama tried to take away the authority of the states under Title IX to treat sex as a biological reality, trying to force on them the concept that “sex” in the law actually meant or included  “gender identity.”

Trump’s action only allowed states to decide if they wanted to treat sex as a biological reality for the purposes of bathrooms, locker rooms, etc. But Trump’s decision also left it up to the states to abandon the idea that sex is biological for the amorphous concept of “gender identity.”

The members of the Senate Education Committee essentially said they were okay with local schools choosing to allow students to choose bathrooms and locker rooms based on how they identified, regardless of their biological sex.

ARGUMENT 2:

Not passing the bill keeps the decision in the hands of local schools and out of the hands of federal judges.

RESPONSE:

This is misleading at best and not true at worst. The only way to keep this issue out of a federal judge’s hands is for schools to allow students to choose the bathroom they want to use, regardless of their sex.

Here’s why. When the ACLU or other like-minded group has sued local schools for not letting students choose the bathroom they want to use, it alleges that this is discrimination in violation of the Equal Protection Clause of the U.S. Constitution. That kind of claim means that, if the school loses, it will have to pay the ACLU’s legal fees.

Given these facts, the only way a school system can be assured it will not be dragged into federal court (where a federal judge will decide the issue anyway!) is to let students choose the bathroom or locker room they want, meaning a boy can choose the girl’s bathroom or locker room. To say “no” to that student is to risk being threatened with or slapped with a lawsuit it can’t afford to litigate; schools will capitulate.

That is why a state law was needed—to make sure any lawsuits were against the state and not local school systems.

ARGUMENT 3:

The attorney general “has the back” of school systems if they are sued for a policy that protects privacy.

RESPONSE:

This argument is irrelevant, but it should immediately be noted that it tacitly acknowledges the truth of the answer to Argument No. 2. The attorney general would never have to “have the back” of a school system if it was not correct about the fact that schools are being sued on constitutional ground because of policies that would protect privacy.

But the answer is irrelevant because the attorney general’s authority is established by state statute, and, being the attorney for the state, he or she has no authority to actually represent a school district over a school district policy. The attorney general’s authority in regard to constitutional claims is only “[t]o defend the constitutionality and validity of all legislation of statewide applicability” and “private acts and general laws of local application enacted by the general assembly.” TCA § 8-6-109(b)(9) and (10).

The school district would still have to hire, at county taxpayer expense, its own attorney to defend the lawsuit. Should the school lose in court, the county taxpayers would be the ones having to pay the attorney’s fees for groups like the ACLU that would bring the lawsuit.

There is only one instance in which the attorney general has been given authority to represent a school district, and it is in connection with suits related to “removing asbestos” from school buildings. TCA § 8-6-109(b)(13).

ARGUMENT 4:

The bill had a large fiscal cost to the state.

RESPONSE:

Picture giving up 20 cents out of $1,000, and you will have a picture of what passage of the bill was estimated to cost the state. After colleges were removed from the bill by the proposed amendment, the only cost to the state was an estimated loss of $300,000 in state sales tax. This equals 2/100ths of 1 percent of the amount of the state’s General Fund revenues. Again, that’s like giving up 20 cents out of $1,000.

Would the privacy of your child or grandchild be worth that to you?

Members of the Senate Education Committee:

  • Dolores Gresham, 615-741-2368
  • Reginald Tate, 615-741-2509
  • Todd Gardenhire, 615-741-6682
  • Rusty Crowe, 615-741-2468
  • Steven Dickerson, 615-741-6679
  • Ferrell Haile, 615-741-1999
  • Joey Hensley, 615-741-3100
  • Brian Kelsey, 615-741-3036
  • Jim Tracy, 615-741-1066

See also David’s related commentary, Looking Good Never Looked So Bad


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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Tennessee Legislators Seek to Protect You From Judges

I want to thank some of our state legislators for taking a stand on a critical issue on your behalf that you probably know nothing about. Liberals and judges who hope to further transform our form of government to their liking hope that you will not read what follows.

Putting the Transformation in Context

To understand the next step in the judicial transformation of our country, you must understand the context. After 200 years, the U.S. Supreme Court in Obergefell v. Hodges asserted that the U.S. Constitution somehow gave it jurisdiction (power) over the Legislatures in the several states to redefine marriage. But then it purported to impose that definition on the states. Purporting to tell a state what laws it must enact was a huge overreach by the Supreme Court.

Now the question is whether that decision will be used by judges to assert jurisdiction over the state Legislatures to redefine what it means to be a parent and impose that definition on them. That very question will soon be answered in Tennessee.

When is a ‘Wife’ not a ‘Mother’ of a Child?

This question arises because of a lawsuit pending in Knoxville. Two “married” lesbian women are seeking a divorce. Nothing too controversial about that anymore, but what is controversial is whether the wife who is not related to the child biologically is the “mother” of the child. The answer is important because a mother’s custody rights have historically depended on that person actually being the child’s biological mother.

To obtain custody rights, the woman not related to the child biologically points to a statute the Legislature enacted by law forty years ago. That statute says a child will be presumed to be the legitimate child of a “husband and wife” if the wife has a child by artificial insemination with the consent of “her husband.”

Clearly, though, she is not a “husband,” so she argues that the Obergefell decision now requires the Court to “interpret” the statute by substituting the word “spouse” for the word “husband.” Sadly, Tennessee’s Attorney General Herbert Slatery has filed a brief in support of her argument.

Who Gets to Decide the Policy Question?

What our attorney general seems not to understand is that substituting the word “spouse” for the word “husband” is a change in the underlying public policy reflected in the statute. It is a change from a belief that complementarity exists between the biological sexes and that it has value in the nurture of a child to a belief that there either is no complementarity between the sexes or, if there is, it makes no difference in the life of a child. Worse yet, the judge in the case has already said that “no policy [is] being determined by the Court” in connection with this suggested interpretation of the statute!

Legislators to the Rescue

Because our attorney general doesn’t seem to know that there are two different belief systems in conflict here, and that different belief systems affect policy decisions in different ways, 52 state representative and 19 state senators are asking the judge in that case to let them intervene. They want to defend the authority given them under the state constitution to decide how to determine and address parent-child relationships in these new marital contexts. I am proud to represent them.

How This Case Transforms Government

You might think, “Who cares?” since you are not in a same-sex “marriage” and you had children the old fashioned way. Moreover, you may be wondering how this case affects a transformation of government. Here’s the answer.

Our attorney general, with the help of the U.S. Supreme Court’s Obergefell decision, is effectively urging our judges to continue shifting the balance of powers in our government away from elected, accountable representatives to themselves.

When government’s power gets shifted from those you can elect and can hold accountable to judges who you really cannot elect and cannot hold accountable, then power has shifted away from you.

If our judges agree with our attorney general, then their decision will become judicial precedent for rewriting other laws, maybe one you do actually care about. With each such decision, our judges will effectively be shifting public policy decisions right out from under your control. While you watch the state Capitol for “bad” laws, the transformation of government itself is taking place in the courthouse.

If someday you find yourself completely powerless before a black-robed oligarchy, you’ll know why.

Thank God these legislators are fighting for you.

Read the Motion to Intervene


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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Are Tennessee Officials Content to Ignore the Law?

It is becoming increasingly apparent to me that we have a number of state officials (non-legislators) and local elected officials who either don’t know the law or are content with ignoring it. An opinion from Attorney General Slatery proves my point.

I was recently preparing for oral arguments in a lawsuit I am handling on behalf of various ministers and residents of Williamson County against the Williamson County clerk. In the course of my preparations, I ran across an opinion from our state’s attorney general that proved the point I was going to try to make to the court.

The Background Context That Exposes the Lawlessness

To appreciate one of the points I was going to make in court, you need to understand what the lawsuit is about.

The lawsuit alleges that Tennessee’s marriage license law, which requires that applicants be a male and female, may be unconstitutional because of the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015. The Supreme Court “held” that laws like Tennessee’s were invalid, but despite what you may think based on reports by the media, that law was not part of the Supreme Court’s Obergefell decision.

In other words, no court has “officially” ruled on whether Obergefell invalidated our law. That probably seems like a technicality, but that’s where the attorney general’s opinion comes in.

The Attorney General Says, ‘Obey the Law’

One of the points I wanted to make in my oral argument was that until a court rules that our law was somehow “amended” by Obergefell, no court decision has ever authorized the county clerk to issue a license to anyone other than male and female applicants. Until then, my argument was that the county clerk had to obey the existing law and that by issuing licenses to same-sex couples, the clerk was acting illegally.

It turns out that my view of the law is the same as Attorney General Slatery’s!

In 1984, the attorney general was asked if elected officials such as county clerks still had to obey a state law even if the attorney general had issued an opinion to the effect that the courts would hold the law unconstitutional. This is important because I’m sure our attorney general would say that our marriage license law would be invalid if ever challenged in court.

Here is what the attorney general said:

[U]nder relevant constitutional principles, the public, individuals, and ministerial officers [like County Clerks] must presume a state statute to be constitutional until it is declared unconstitutional by a court of competent jurisdiction.

What the Attorney General’s Opinion Means

That means a county clerk has no legal authority to determine if our law is unconstitutional after Obergefell and certainly has no authority to determine if the effect of Obergefell was to judicially remove the language in the statute requiring applicants to be a male and female.

The attorney general’s opinion rightly concludes that only a court can interpret what effect Obergefell had on our marriage license law. Moreover, the attorney general essentially said that even if he tells the county clerks that Obergefell rewrote the law, that opinion is not a court’s opinion and the law should still be obeyed.

What This Means for Our Attorney General

After reading that attorney general’s opinion, I have a lot of questions. Here are two of them:

  • Why has our state attorney general not told the county clerks to obey the law until a court says otherwise? After all, that is the attorney general’s “official” opinion.
  • Why is the attorney general sitting out the lawsuit we’ve filed instead of joining us in asking the court what, if anything, is left of our marriage license law? Opposing our view of Obergefell seems better to me than being apathetic about the law being flat out ignored.

What This Means for All Our Elected Officials

But this question is the real kicker for me: Why hasn’t some state or local official brought their own legal action to have a court determine what the effect of Obergefell was on our law?

The only thing I can figure is that they either support same-sex “marriage,” or, more likely, being lawless is just easier for them. Apart from our little lawsuits, no one seems to care if they disregard the law.

I guess we’ll soon find out if even our judges care whether our elected officials obey the law.

Listen to the key exchange I had with the Court of Appeals about this point.


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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Can Washington, D.C., Help ‘Tennessee Thrive’?

The extent to which then-candidate Donald Trump swamped the field of presidential contenders in the Republican Primary and then swamped Hillary Clinton should be an indication that a majority of Tennesseans rejects the liberal political values inside the D.C. Beltway. But some businesses in Tennessee don’t get it. They think we need the values of liberal political groups in D.C. in order for our state to “thrive.”

I’m referring to a new advocacy organization called Tennessee Thrives. It is composed of a number of businesses like First Tennessee; Pinnacle Financial Partners, a banking/investment business primarily in Middle Tennessee but expanding; Regal Entertainment Group, the theater chain; Jack Daniels; Auto Zone; and Saint Thomas Health. The group’s name sounds very pro-Tennessee, but it is actually an arm or offshoot of an organization based in Washington, D.C., called Freedom for All Americans. Freedom for everybody sounds good. But what you “hear” is not what you get! It’s about less freedom and, ironically, less freedom for businesses.

Tennessee Thrives Is All About the LGBT Agenda

Freedom for All Americans and, consequently, Tennessee Thrives and its business members, are all about making sure the only voice that is heard in Tennessee politics is that of the radical politicos within the LGBT lobby and community. Yes, you heard that right. Your voice doesn’t matter unless you agree with the LGBT agenda. Let me explain.

The website for Tennessee Thrives and its business partners says that “Tennesseans must support policies of inclusivity and nondiscrimination.” That means you and me. And what are these policies?

Again they are very clear—you must support a policy that adds “gender, sexual orientation, or gender identity” to our state laws. Those words are not found in our state’s laws, but we are not alone in that regard. The laws in 31 other states don’t, either.

Yet these businesses now think we must impose on all business owners a requirement that their personnel policies must give special protection to people because of who they want to have sex with and whether their psyche tells them that their biological sex is not their real sex.

They think imposing those laws on all business owners is necessary for our state to thrive, which is ironic since the group’s website touts how Tennessee’s economy has been thriving in recent years without such laws.

Since not having sexual orientation and gender identity laws has not been a problem in relation to our state thriving, what is the real problem?

Show Me the Money

Their leaders have expressly said they don’t want any new laws that would be “harmful to the state’s economy.” So what new law, other than the one they happened to like, would be harmful to the state’s economy?

The answer is found in some of the initial stories heralding the group’s formation. One story noted the boycott in North Carolina over the law to keep men out of bathrooms and locker rooms for women. It said the boycott produced “a series of revenue losses that a group of more than 350 Tennessee businesses don’t want to see their state repeat.” Another story was about the “horrible” law Tennessee passed last year that allowed a professional counselor to make a referral if a client was asking the counselor to provide counsel contrary to their own beliefs as to what was good for the client.

In other words, they don’t want the Legislature to pass any new laws that the LGBT activists don’t like and that might cause them to threaten a boycott of the state.

What This Means and What You Can Do

With that as background, let me interpret for you what I hear these businesses saying to you and me:

We don’t care if LGBT advocates would have judges violate the separation of powers by asking them to reinterpret our laws and Constitution to suit their agenda. We don’t care about the rule of law. We don’t care about religious liberty. And we for sure don’t care like North Carolina did about the safety of women and children when men invade their bathrooms and locker rooms. The voices of all you who care about these things, even though you are the majority in Tennessee, don’t matter to us. We just want to make sure the LGBT community is happy and doesn’t boycott Tennessee, because all we care about is money, period. Yes, our Constitution, the rule of law, religious liberty, and our children’s safety are all for sale to the most organized consumer group.

These short-sighted businesses have essentially told these economic terrorists, “We’ll do whatever you want, just please don’t mention the ‘boycott’ word.” I hope our legislators are not so easily intimidated and their values are not so readily for sale.

Find out who these businesses are and then avoid patronizing them when you can. After all, they don’t think you matter anyway.


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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Religious Liberty As We’ve Experienced It Is Dead

Last week the Washington State Supreme Court ruled that a florist, Barronelle Stutzman, could be forced by her state to provide floral arrangements for a same-sex “wedding” ceremony in violation of her religious beliefs. What’s surprising to me is that her loss is surprising to so many Christians.

At issue in Ms. Stutzman’s case was a statute that prohibited those engaged in public commerce from not providing services to someone because of their sexual orientation. Several technical, legal arguments were made as to whether the statute should be construed to apply to her, but when you’re fighting for religious liberty on technical grounds related to the wording of the statute, then your “win,” if you win, is short lived. A liberal state will just amend the statute to close the “loophole.” That kind of fight for religious liberty, while helpful in the moment, is, as I said last week, a “useless effort” from a long-term perspective.

The real issue for those who care about religious liberty is found in the fact that the state Supreme Court rejected Ms. Stutzman’s argument that the court had “to balance her right to religious free exercise against [the customer’s] right to equal service.”

Ms. Stutzman’s Claim Actually Lost Nearly a Century Ago

Ms. Stutzman’s legal argument was before the U.S. Supreme Court 98 years ago and “religious free exercise” lost. Ironically, it was even a case about marriage! The case was Reynolds v. United States.

The question was whether Mr. Reynolds could be punished for polygamy under the U.S. laws then applicable to the Utah territory. Read carefully what the Supreme Court said of his claim that to punish him for polygamy would violate his right to the free exercise of religion:

The only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. . . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? . . . Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The law punishing polygamy was upheld.

It was upheld because the religious views of the time reflected in the common law and in the history of Western Civilization held that polygamous marriages were “odious” and an “offense against society.” Thus, the Court reasoned, the Framers of the Constitution could not have intended for the free exercise of religion to be an excuse to violate laws founded on the country’s moral beliefs.

Why the Stutzmans of America Will Continue to Lose

To understand why Reynolds lost and why Ms. Stutzman had to lose, we must understand the belief system that undergirded the Reynolds Court’s decision. It was a belief that a legal structure (not just a particular law) rests upon some moral code, and religious freedom can’t be used to violate the moral code found in the law. That was true then, and it is true now.

What has changed—and it explains why polygamy could be banned in 1879 and why it will not be able to be banned in the coming years—is the religious beliefs that informed our laws back then. We no longer believe that God has imposed any laws on the social order that all must recognize, including those who make our civil laws.

For example, today our moral code is increasingly finding nothing wrong with same-sex “marriage.” Therefore, a religiously grounded right not to participate in a same-sex “marriage” (unless perhaps one is a church or a minister) is not acceptable. An exception would violate today’s prevailing religious orthodoxy. The same will be true for polygamy.

Put another way, in the language of the Reynolds case, same-sex “marriage” is now “okay” not “odious.” It is more “acceptable” to society, not an “offense” against it. Therefore, Ms. Stutzman cannot make her “religious beliefs superior to the law of the land.”

Sadly, over the last century, the Christian Church became complicit in this cultural change in the religious underpinnings of our legal structure by making Christianity a matter of strictly personal behavior and by not wanting our ministers to discuss the issues of our day from the pulpit.

The vacuum the Christian Church left has been filled by another religion, secular humanism. Religious liberty for those whose beliefs are consistent with secular humanism is alive; it’s just not alive for those who, like Stutzman, hold to biblical beliefs.

The Church is now reaping the fruit of the pietism and cultural silence it has sown. Thus, conservative Christians shouldn’t be surprised anymore when courts uphold laws that force them to violate their beliefs.


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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