silhouette of three people in suits against the background of the Tennessee flag

Will the Legislature Finally Bite Back?

There is supposed to be a balance of powers between the three branches of state government. But that balance is out of whack, tilted in favor of the supposed “least dangerous branch”—the judiciary. The proverbial tail, in this case the judiciary, is now wagging the dog, otherwise known as the state Legislature. After last week, I think you’re going to see some of the “dogs” in the Legislature bite back.

The spark that lit a fire under some legislators was a decision last week by Judge Greg McMillan in Knox County. He decided he could rewrite a statute because he thought it was unconstitutional. No judge has that power.

Judges Can Only Interpret Ambiguous Terms

Judges do have the power to interpret a law and, in the words of the Tennessee Supreme Court, “if an ambiguous term has created a constitutional problem which may be solved by construction, courts have a duty to do so.” In other words, if a term is “ambiguous,” then courts should give that term a meaning that would result in the statute being constitutional.

That, of course, is just common sense; it’s simply a recognition that the Legislature’s intent would always presumably be to enact a constitutional law.

But if a term is not ambiguous and that term makes the law unconstitutional, then a judge should hold the law unconstitutional and let the Legislature figure out what to do next.

Is ‘Husband’ an Ambiguous Term?

Given that legal primer, let me ask, “Is the word ‘husband’ ambiguous to you?” Let me ask it another way: “Is a ‘husband’ always a male?” Before you answer, keep in mind that even when two women marry, neither of them goes by the moniker “husband.”

My guess is you answered correctly, that a “husband” is a male. But my rather straightforward question was apparently too tricky for Judge McMillan and for our attorney general, Herbert Slatery. For them, the word “husband” in a statute dealing with the insemination of a “married woman” with the consent of her “husband” is apparently ambiguous.

The reason I know that is because Judge McMillan ruled last week, at the urging of our attorney general, that the word “husband” needed to be interpreted. Remember, only ambiguous words need interpreting.

Judge McMillan agreed with General Slatery that the word “husband” needed to be interpreted in a “gender neutral” fashion to mean “spouse,” so that the word “husband” could include a wife.

The excuse given by the judge and General Slatery for this act of judicial legislation was that the law would be unconstitutional if the word “husband” was given its normal and ordinary meaning, which, by the way, is how the Tennessee Supreme Court says words should be interpreted.

Are ‘Husband’ and ‘Wife’ Really Interchangeable Words?

And why would a statute governing the relationship between a “husband” and “wife” be unconstitutional? General Slatery said it is now unconstitutional to have a statute pertaining only to husbands and wives because of the U.S. Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. According to him, Obergefell requires judges to rewrite all existing laws governing the family in a sex-neutral way.

Obergefell did no such thing. In fact, the Texas attorney general recently argued before its state Supreme Court that Obergefell only dealt with the licensure of marriages and the rest of family law was still within the exclusive jurisdiction of the states.

General Slatery Leads Judge Astray

What is maddening is that until General Slatery got involved in the Knoxville case, Judge McMillan had gotten it right. He had ruled, “The statute is not ambiguous. This Court does not read the United States Supreme Court’s opinion in Obergefell . . . to override this Court’s duty to interpret statutes in a manner that gives effect to their plain meaning.”

But when one of the parties asked the judge to consider whether a normal reading of the statute might mean it was unconstitutional, in came the attorney general to “save” the statute from ignominious defeat with his husband-can-really-mean-wife theory of sex and marriage.

What that means is that you can lay this bad decision and the abdication of the state’s jurisdiction over family law directly at the feet of General Slatery.

Some Legislators Are Barking; Will They Bite?

What will the Legislature do now that Judge McMillan thinks rewriting unambiguous laws to make them constitutional is his job—not the Legislature’s?

Moreover, what will they do now that they know their state Supreme Court appointed lawyer—General Slatery—thinks the state should abdicate its jurisdiction over family law to the U.S. Supreme Court and thinks that it is the role of judges, not the Legislature, to rewrite unambiguous laws if they think the law, as written, is unconstitutional?

Stay tuned. Based on a meeting I had the other day, I suspect that come next January some of our legislators may just bite back and try to restore the balance of power between themselves and the judiciary and its lackey, the attorney general. The barking, at least, has started.


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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gas pump in gas tank of a car

The Little Guys in the House Are a ‘Gas’ to Watch

I don’t usually comment on Tennessee political issues that are outside the focus of the organization for which I work, but what is going on with the gas tax is just too interesting to let slide.

To appreciate what’s going on, you need to understand that the state House has always had a top-down management style.

It works sort of like this. The Speakers typically give the rank-and-file Representatives (hereafter, the “Little Guys”) the freedom to represent their folks back home, so long as their views on something important don’t conflict with that of the Speaker or the Governor, to whom the Speakers for some reason seem to always take some kind of fealty oath. But when there is a conflict, the Speaker uses the loyalty of his or her committee and subcommittee chairs, engendered by their being given a position of “importance,” to bring down the hammer and get the “preferred” agenda rammed through.

For example, two years ago, the Governor’s Common Core education program had to be protected at all cost. So the word came down from somewhere on high that legislation to repeal Common Core had to die.

The Chair of the House Education Subcommittee shunted the legislation off to his subcommittee’s last meeting for the year. That almost ensured the legislation’s demise, because the Legislature would most likely adjourn before the legislation could move through the legislative committee labyrinth.

Well, the Little Guys back then, hearing from their constituents back home that they didn’t care one little bit that the Governor liked Common Core, rose up. They stuck an amendment that would repeal Common Core onto a bill that was already on the House floor, thereby forcing their concerns to be heard.

It was ugly for Speaker Harwell and the Governor. On the floor, the Little Guys ate their lunch. Eighty something legislators voted for the amendment and then for the amended bill.

Now we come to the present, what one might call “Common Core 2.0,” otherwise known as the Governor’s IMPROVE Act. The Governor quite naturally wants his bill passed, and, apparently, that means that the House Speaker has to carry out his orders. So, in recent weeks, the bill got rammed through a couple of committees by the Speaker’s henchmen, and it now sits in the House’s Finance Committee. A favorable vote there and the bill goes to the House floor.

But the Little Guys just won’t shut up and go along.

Two weeks ago, Rep. Jerry Sexton from tiny Bean Station went on record in one of the committees as saying (and I paraphrase), “Republicans sure like to talk about smaller government and lower taxes during elections, but when we get elected and come down to Nashville, something seems to change; we Republicans just have to raise taxes to fix our roads, even though the state has more money than it can spend, praise Jesus.”

The video of his comments went viral—30,000 views in a week! I think people were shocked to see a Republican courageous enough to call out Republicans for their efforts to massage an increase in the gas tax and publicly buck the Speaker and the Governor.

Then came a press conference on Monday. This time Rep. Sexton was flanked by about 16 of his colleagues. And there were more who I know would have been standing there had they been able to attend. They demanded that the IMPROVE Act be sent back to the original committee and that the process be started all over, but without all the ramming and cramming this time.

I could see a huge fight on the House floor coming. The IMPROVE Act may be rammed through Finance to the House floor in the days ahead, but then all the Little Guys may just try to “common core” the Speaker and Governor on the floor.

Now, maybe it’s just coincidence, but by week’s end Speaker Beth Harwell was coming up with a plan that does not raise the gas tax. Then, again, maybe she really does have her eye on a gubernatorial race, and maybe she got to thinking how she’d look on the campaign trail with two black eyes, one from Common Core and the other from the IMPROVE Act.

To be honest, I’m not as much interested in how we wind up paying for our roads as I am interested in seeing the Little Guys rise up. They may not “win,” but I appreciate someone standing up for us, the proverbial little guys among the citizenry. Too many of us feel like too often we have too little voice in what happens. So I say, “Little Guys, may your tribe increase! The process has got to change.”


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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coffee cup, mobile phone, and newspaper

What Newspapers Didn’t Tell You

Thomas Jefferson once said, “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” After being on the inside of state politics for 23 years, I increasingly tend to agree with him. A story in The Tennessean this week is a case in point.

The story related to action taken Wednesday by the House Civil Justice Subcommittee on House Bill 892, dubbed the Tennessee Natural Marriage Defense Act. Thankfully, no other newspaper picked up the story because it so missed the whole point of what took place that those who didn’t read it are better off than those who did.

The heart of the debate centered on an amendment that rewrote the original bill. If you read the article, you would have no idea what the amendment was about.

The amendment is primarily directed at two things: directing state and local officials to obey the marriage license law that requires applicants to be a male and female until a final court order tells them otherwise, and making sure that the state protects them in court if they do.

The story never told you why the amendment was offered. It was because no court has ever ruled on how the U.S. Supreme Court’s same-sex “marriage” decision (Obergefell v. Hodges) applies to Tennessee’s male-female marriage license law.

Many would say, “So? The Court was very clear; laws restricting licenses only to males and females are invalid.” That’s true, but that’s also the point—no one, including our state attorney general, has thought to ask, “If that opinion renders our law invalid, then what is the law?”

This is where an opinion from the attorney general’s office comes in. His office has opined that office holders such as county clerks must obey a law until a court officially declares it unconstitutional.

This opinion makes perfect sense. If every county clerk could decide how to interpret the effect of Obergefell on our law, then, as I told the subcommittee, we would have chaos.

One clerk, following the attorney general’s opinion, could say that the law is still valid until a court rules it is invalid and might only issue licenses to male and female couples.

Another clerk could say there is no marriage license law because Obergefell invalidated it, and the Legislature hasn’t replaced it. And another clerk could decide the Obergefell decision itself somehow “amended” the law to authorize any two people to get a license.

Only a court can “judge” which of those views is correct, and no judge has done so.

So why aren’t county clerks doing what the attorney general said? Why aren’t they following the law until a court tells them to stop? Simple. They will get sued for not issuing a license to same-sex couples, and they will have to defend that lawsuit at the expense of local taxpayers. And that is where the amendment comes in.

The amendment protects all officials who will obey the law. It does so by allowing the attorney general to defend them and, if the attorney general declines, then the state will indemnify that official (and local taxpayers) from any legal fees he or she has to pay and from any court costs if they lose.

That amendment was adopted. Then the subcommittee delayed a vote on the bill, as amended, until next year.

The vote was delayed because two pending lawsuits that I am handling as an attorney (The Tennessean wrongly reported that I was a “party”) may resolve the question of what law, if any, still exists after Obergefell.

However, if over the next few months the Tennessee court system decides it does not want to hear those cases and refuses to determine what the effect of Obergefell was on our law, then we will come back to the bill. And if the bill is enacted, maybe some of our county clerks will muster the courage they need to obey the law and follow the attorney general’s advice to that effect.

If just one county clerk then decides to obey the law, a same-sex couple will sue him or her. But he or she will be defended in court by the state. And the courts will not be able to avoid making a decision in that case on what law, if any, still exists after Obergefell.

What happened in that subcommittee was a significant step toward resolving a huge, unanswered constitutional question left hanging by Obergefell.

If the bill has to be taken up again next year, then opponents will have to address the legal and constitutional question the amendment raises. The focus will not be on whether we should have same-sex “marriage,” but on whether we should uphold the rule of law. That will be a significant change in the nature of the debate.

And now to paraphrase Thomas Jefferson, you are better educated than the person who read the newspaper story.


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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Nashville skyline, Tennessee Flag in shape of the state, and men and women bathroom sign

Looking Good Never Looked So Bad

It pains me to write what follows. And it pains me to say what the silence of the members of the Senate Education Committee said this week about who they wanted to look good in front of when it came to the bathroom bill that would have protected the privacy of K-12 students in our public schools.

What Happened to the Bathroom Bill?

A bill that members of the Senate Education Committee voted 7-2 in favor of last year was before the Senate Education Committee this Wednesday. The bathroom bill would have required schools to ensure that a student could go into a bathroom or locker room knowing that only others of his or her same biological sex were supposed to be in there.

In other words, under the bill, no biological male could use the junior high girl’s bathroom or locker room. Schools were allowed to make accommodations for students who do not “identify” with their biological sex. It was a commonsense bill.

But before anyone could have said, “Let’s keep the Human Rights Campaign happy,” the Chair of the committee ruled that there was no motion or second on the bill. That meant the bill died without anyone even wanting to go on record as to why they couldn’t vote for the bill.

I think I know all the reasons that could have been given for not supporting the bathroom bill. (Click here for a list of reasons given so far and my responses.) I provided every member a lengthy letter addressing every objection I’d heard. And, keep in mind, seven of them had voted for the bill last year.

So What Changed?

What changed was North Carolina. In case you didn’t hear, last year North Carolina’s Legislature valued the privacy and security of their children enough to pass a bill on this topic. And the Human Rights Campaign went all out urging businesses to boycott the state.

But the boycott’s effect was negligible. It cost North Carolina less than 1/10th of 1 percent of its gross domestic product. To put that in perspective, North Carolina thought the privacy and safety of their people was worth losing $1 out of $1,000.

What about the cost to Tennessee, though? The legislative committee that estimates the cost to state taxpayers of proposed legislation said the passage of the bill could result in lost conventions that could cost the state an estimated $300,000 in sales tax revenue. That would affect the state’s General Fund by 2/100ths of 1 percent. That’s like 20 cents out of $1,000.

Given a roughly $1 billion revenue surplus, losing $300,000 of that is nothing.

So what was the problem? It was all the “negative” publicity that would come if the bill became law.

Every article about North Carolina for the last year mentioned the bill its Legislature passed, and the liberal media did its best to leave the impression that folks in the Tar Heel state were homophobic and intolerant.

I think that is what the leaders in our General Assembly and our governor wanted to avoid—looking bad to the rest of the country.

But I don’t think we would have looked bad to everyone else in the country. There are a lot of folks who have looked favorably on North Carolina for what they had the courage to do (and a lot of them live in Tennessee).

However, we would have looked bad to the folks at the Human Rights Campaign and their devotees, if that’s what matters most.

Look Who’s Looking

But if we want to look good, we must be mindful of who is looking and whom we really want to impress by our looks.

In that regard, and taking a long-term view of things, Scripture tells us that God looks down from Heaven and observes all the ways of mankind. And elected officials are forewarned about the seriousness with which He looks upon their actions: “A divine decision is in the lips of the king; His mouth should not err in judgment” (Proverbs 16:10).

God’s judgment in regard to our sexuality is clear—we were made male and female, and we were designated by Him as such based on how we were made, not how we felt. And when our nakedness provoked a sense of modesty, He took the trouble to cover us.

That’s how I think God looks on the subject based on what He’s told us about ourselves. I wonder how we look in His eyes.


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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male and female bathroom symbols with roll of toilet paper

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.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event