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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Chaos and Timidity at the State Capitol

The chaos we’ve read about in other states has now descended on Tennessee. It appears that loud, intentionally disruptive demonstrations are going to become the norm in Tennessee. And there is, I think, a reason we can expect it to continue.

On Monday, a bill opposed by LGBT activists was to be heard on the Senate floor. Protestors stood outside the doors to the Chamber and yelled like 2-year-olds.

On Wednesday, two Tennessee legislators tried to hold a press conference to talk about two bills, one related to natural marriage and one related to privacy and security in places of undress. Almost as soon as the press conference started, it was shut down by the shouts of LGBT protestors. Then the protesters hounded the legislators through the halls when they tried to return to their offices.

State troopers stood and watched.

Democratic leaders at the Capitol seemed to approve and called for more “open” government, a nice way of saying, “Keep up the great work” to the shut-down-the-government protestors.

The Proposed Solution

The proposed solution is to reinstate a policy that requires those entering the Capitol to wear a nametag patterned after their driver’s license. Based on what I saw, I don’t think those folks would care. This solution is like suggesting that the folks in Sevierville fight the recent fires with their water pistols.

Why is there such a tepid response—from D.C. to Nashville—to actions designed to shut down our ability to govern ourselves?

The Reason We Respond So Timidly

I believe our collective response is so timid and weak to the chaos around us because we no longer have any theological or even philosophical ground upon which anyone can assert any authority over anything anymore. We have a crisis of authority.

I recently read the book The One and the Many. The author wrote something that so rang of truth to me that I was shaken to the core:

Much of the present concern about the trends of these times is literally wasted on useless effort because those who guide the activities cannot resolve, with the philosophical tools at hand to them, the problem of authority. This is at the heart of the problem of the proper function of government, the power to tax, to conscript, to execute for crimes, and to wage warfare. (emphasis supplied)

Nametags are, to me, an essentially useless effort because nametags don’t get at the underlying problem—the lack of respect the protestors have for authority and their disdain for being subject to any authority higher than themselves.

Society, as a whole, and most of its leaders have given up the belief that there is any Creator with authority over us who, by virtue of His authority, has imposed any law over us to which we are subject. Having given up this theological basis for authority, we now are left only with “philosophical tools.” And here is why those tools can’t “resolve the problem” of authority.

‘Sez’ Who?

The late Yale Law professor Arthur Leff, in a brilliant and insightful Duke University law review, rephrased the issue this way: “[W]hen would it be impermissible to make the formal intellectual equivalent of what is known in barrooms and schoolyards as “the grand sez who”?”

In other words, if we are our only source of authority, no one is allowed to say to anyone else, “You can’t do that. Stop!” without the other saying, “Says who?”

To make the kind of statement that needs to be made relative to these protestors (or relative to any other asserted command), one must have authority to make the statement, one must have authority over those to whom the statement is made, and those to whom the statement is made must recognize and respect that authority.

No such cultural or political authority exists anymore.

What Are We to Conclude, Then?

Refusing to reconsider the possibility that there is a Creator with authority who delegates that authority to mankind subject to His rules for its proper use, professor Leff closed his article with this solemn statement:

All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us “good,” and worse than that, there is no reason why anything should. . . . God help us.

Cain is showing up everywhere. Even at our state Capitol. God help us, indeed.


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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Texas AG Takes Supreme Court Judges to School

I have really come to admire Texas Attorney General Ken Paxton. After suing the Obama administration more than forty times in the last eight years, the Texas attorney general has now asked the Texas Supreme Court to stick to judging instead of lawmaking and to limit the reach of the Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. In doing so, Paxton’s brief gave the judicial branch an excellent primer on the limits of its authority.

The Texas attorney general has told the Texas Supreme Court that the Obergefell ruling does not require Texas to apply all the state’s laws related to heterosexual, natural marriages to same-sex “marriages.” The point of the lawsuit isn’t whether the state Legislature should, for policy reasons, treat both types of marriages the same for all purposes, but whether the state’s courts should apply the Obergefell decision in a fashion that takes those decisions away from the state Legislature.

‘Sloppy’ Talk Makes for ‘Sloppy’ Decisions

The Texas attorney general’s brief begins with the following noteworthy statement to which I would add a hearty Amen! “State courts tasked with applying Obergefell should bear in mind foundational concepts of federal jurisdiction that are often ignored in the regrettably sloppy public discussion of U.S. Supreme Court rulings.”

Indeed, the public discussion about what the “ruling” in Obergefell did and did not do has been sloppy. In fact, as I’ve previously noted, it’s been sloppy even within the office of Tennessee’s attorney general. What’s been sloppy is the jurisprudential fact that it is the “judgment” of the Supreme Court that is key, not the opinions of the justices.

Opinions Are Not the Constitution

As Attorney General Paxton explained:

A federal court may or may not choose to write an opinion to explain the basis for its judgment, but every word of that judicial opinion does not thereby become constitutional law that binds other branches of the state and federal governments. While the judgment in Obergefell is authoritative, Justice Kennedy’s lengthy opinion explaining that judgment is not an addendum to the federal constitution and should not be treated by state courts as if every word of it is the preemptive law of the United States. (emphasis in the original)

And that leads to the next important jurisprudential fact that Paxton noted and about which we’ve gotten sloppy: “[A] federal district court judgment against state officials does not amend the Texas Constitution or the Texas Family Code. And it most certainly does not require state courts to act as if those provisions of Texas law no longer exist.”

In other words, there are laws in Texas that the Obergefell Court did not rule on, and they are still good law until some court rules that they, too, are invalid or the Legislature changes them.

Different Issues Must Be Treated Differently

Attorney General Paxton summed up the preceding statements by noting that state judges cannot confuse “what five Justices of the U.S. Supreme Court said in explaining” the judgment in Obergefell—a right to marry case—with “different constitutional questions in a different case”—cases deciding how laws applicable to heterosexual couples apply to same-sex couples.”

For example, incest laws prohibit siblings, a brother and a sister, from marrying, ostensibly because of genetic abnormalities should they reproduce. But should we apply that “equally” to two brothers who want to marry even though they can’t produce offspring?

To allow marriage between the brothers and not between brothers and sisters because one can’t produce offspring and the other can is to treat them differently, arguably a violation of equal protection according to liberals. But to treat them differently is to recognize that the two sexual combinations are, in fact, different, an anathema to liberals. Can the Legislature treat the two differently, or does Obergefell require that they are treated the same?

Obergefell didn’t decide that question, and Justice Kenney’s majority “opinion” in that case can’t be mechanically applied to decide this different kind of case.

Federalism and the Rule of Law Are at Stake

The Texas attorney general concluded by emphasizing why state judges should not willy-nilly rewrite and reinterpret state laws to make them “fit” this new kind of marriage, which the existing statutes did not contemplate. “Principles of comity, federalism, and the rule of law should make state courts particularly wary of using the federal constitution to expand upon newly created substantive due process rights that have the effect of undoing the work of state lawmakers,” he said.

In other words, state judges should not abdicate the state’s rights relative to family law to federal judges (“comity” and “federalism”). And they shouldn’t engage in legislating from the bench (the “rule of law”); legislating is the “work of state lawmakers.”

What Will Our Legislators Do?

This session, Tennessee’s legislators will have a chance to vote on bills designed to prevent state courts from “undoing the work of state lawmakers” and help them stick to judging the law, not rewriting it. Let’s hope our legislators will stand up for federalism and the rule of law in Tennessee as well as Attorney General Paxton did for Texas.


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 Cure for Liberal Chaos

Just this week, Democratic congressmen “boycotted” a committee meeting because it was not enough to just vote “no” on a cabinet nominee, and students at Cal-Berkeley rioted simply because Breitbart’s editor was scheduled to speak on campus. Even at the state Capitol, the number of groups thinking it necessary to chant and shout to the point of distraction is increasing. What are we to make of this and what should we do?

When I see adult politicians act like children who take their toys and go home because they can’t get their way, and I see crowds who would rather shout vacuous bumper-sticker sized slogans than engage in serious debate, I can’t help but think of what Solomon said: “When a wise man has a controversy with a foolish man, the foolish man either rages or laughs, and there is no rest” (Proverbs 29:9 NASB). If you want to identify who the fool is in a situation of “unrest,” this verse would suggest that you look for who is either raging or trying to make fun of the other side.

The fool is reduced to rage or ridicule quite simply because he is a fool. Biblically speaking, fools lack wisdom, knowledge, and understanding, a deficit trifecta when it comes to dealing with a wise man who, biblically speaking, has what the fool lacks. It’s an unfair “competition” when it comes to the competition for ideas, so the fool has to resort to creating unrest by rage or ridicule.

How did we come to this point, and what are we to do if what we believe and stand for is likely to become the object of rage or ridicule?

The answer to both questions centers on courage. We arrived at this point because we lacked the courage of our convictions, and we will not rise above our current circumstances until we begin to stand on our convictions.

Alexander I. Solzhenitsyn, in his 1978 commencement address at Harvard, appropriately entitled “A World Split Apart,” said:

A decline in courage may be the most striking feature that an outside observer notices in the West today. The Western world has lost its civic courage, both as a whole and separately, in each country, in each government, in each political party, and, of course, in the United Nations. . . . Must one point out that from ancient times a decline in courage has been considered the first symptom of the end?

A lack of courage will eventually bring us to an end as a nation and, conversely, only courage will bring an end to the chaos in our nation.

What courage looks like depends on the circumstances. It could be as simple as calling or emailing your elected official about legislation that will impact your values. It could mean having the courage to show up at a hearing when a policy is being debated or even speaking publicly to the issue as a citizen. It could mean not supporting a friend for public office just because he or she is a friend, goes to your church, or is involved in some organization with you if your friend is not likely to stand up for your values. It could mean educating yourself well enough to simply ask good questions that might make someone think when he or she makes foolish, even contradictory statements.

Courage isn’t just boldly sticking your finger in the other person’s eye; it just means not disappearing before that person’s eyes when it matters most.

In the face of rage and ridicule, what we need is courage. A lot more courage. A pastor friend of mine routinely closes his emails with, “Lord have mercy. Church have courage.” Courage will indeed be needed to cure our chaos.


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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Legislators Address the Unintended Consequences of Judicial Policy-Making

The front page, headline story in The Tennessean this week was “Bill: Define mother, father, husband, wife by biology.” It has already generated a firestorm of controversy in some circles.

The bill sounds simple because it accords with what we intuitively think those words mean. For example, as a male, I will never be a “wife.” I am the father of my daughter and could never have been her mother. Even same-sex couples don’t “designate” one person to hold the “title” we have given the opposite sex. In same-sex relationships, both men are husbands and both women are mothers.

So how is a bill controversial that amends the definition section of the Tennessee Code to say simply that when judges (and others) run across these four words in the substantive law, they mean what everyone has historically thought they meant?

According to supporters of same-sex “marriage,” it is horrible because of the “unintended consequences.” According to them, the unintended consequences “could be great because of the number of times the word comes up in the code.” I agree about unintended consequences, but not about what they are and the reason for them.

Who Created the Problem?

The problem of unintended consequences isn’t the fault of the proposed legislation. It’s the consequence of the Supreme Court making public policy in June 2015 with its decision in Obergefell v. Hodges.

In that decision, the court disconnected biology and procreation from the meaning of marriage and purported to amend long-established marriage licensing statutes to require same-sex “marriage.” But it forgot (or didn’t care) that every other statute involving family law was based on the assumption that marriage was connected to biology and procreation. This is where the unintended consequences come in.

Because of Obergefell, everyone is going to have to grapple with those unintended consequences relative to these other laws. What are judges and school administrators, for example, to do with the statutes they have to administer that are based on the “old” definition of marriage?

From a judicial perspective, it could mean that all those laws are, like the marriage license law, unconstitutional. In fact, some judges have said as much. But, again, that is not a fault of the proposed law, but rather a consequence of what the Supreme Court did.

Who Should Solve the Problem?

The problem is going to fall disproportionately on state courts that have to grapple with the statutes that govern family law issues. A judge in Knoxville is currently being asked to redefine one of these words under the guise of “interpreting” the statutes. But if judges do this, it will just exacerbate and perpetuate the problem of judicial policy-making radically advanced in Obergefell.

The fact is courts are not charged, under the Constitution, with “conforming” the law to changing cultural mores; legislative bodies are or else the people, by means of constitutional amendment. That is why it is constitutionally correct and wise for the Legislature to tell our judges (and all others who will have to administer statutes with these words) that the words in question should be given their normal meaning. And it is wise they do so because of the larger issue at stake.

The Larger Issue

The issue isn’t, as some would suggest, meanness or intolerance. It’s about trying to salvage the rule of law.

As one justice on another state’s Supreme Court recently said, “If we cannot depend upon the meaning of words as understood at the time the words were chosen by their speaker or writer, the ability to communicate any idea from one time to another is lost. The ability to communicate any truth from one time to another is lost, and therewith the rule of law.”

That is what is really at stake. The U.S. Supreme Court, by its judicial policy-making and its willingness to disconnect the definition of marriage from its long-understood meaning, greatly accelerated the process of killing the rule of law. Justice Roberts’ dissent in Obergefell acknowledged as much: “Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law.”

When the next round of cases comes to the High Court through challenges to the definition of these other words in these other statutes, it will do one of two things: finish killing the rule of law, or repent of the judicial policy-making and constitutional revisionism in which they engaged in Obergefell and return family policy law to the states, their Legislatures, and their people.

Until then, we are all going to have to live with the ambiguity created by the unintended consequences of what the Supreme Court did in Obergefell.


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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