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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