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.)


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


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.


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


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.


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


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).


The bill had a large fiscal cost to the state.


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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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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up-close photo of a cow in a field with the Tennessee flag logo

Holy Cow. Is the Attorney General Full of Bull?

This week I couldn’t help but think of our state’s Attorney General when I drove by the cattle farm I pass on my way home. And I thought, “Holy Cow! Our Attorney General is full of bull.”

I’m not referring to the Attorney General as a person, but I am referring to a brief his office filed in a case in which I’m involved. I’ve mentioned the case before in reference to his abandonment of our state’s sovereignty, but this time I want to call attention to the word games he’s playing.

The case is simple. A statute enacted in 1977, way before same-sex “marriage,” provides that if a married woman is artificially inseminated with the consent of her “husband,” the child will be considered the legitimate child of the “husband and wife.” But a lesbian in the process of getting a divorce from her wife who had a child by insemination is arguing that the word “husband” in the statute is really gender neutral and should be interpreted to mean “spouse.”

Now, I don’t know what other word the Legislature should have used in 1977 to describe the person in a marriage opposite the party with a womb, but husband apparently came to mind. You would think that the Attorney General would argue that the statute does not apply because there is no such thing as a female husband. Even lesbians don’t call their marriage partner a husband!

But no. The Attorney General argues that the word “husband” can mean “spouse.”

In support of that argument, the Attorney General cites a general statute enacted to help guide courts in their interpretation of statutory language. It says, “words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.”

You would think it would be manifest that in 1977 the Legislature meant for the word “husband” to mean a male member of the human species, since that was the only other non-womb party you would then have in a marriage. But, again, no.

What the Attorney General is doing is confusing sex-related words with rules of grammar and the terms we’ve assigned for grammatical purposes to sex-related words. We call words associated with biological males masculine and words associated with biological females feminine. This should not be too hard for the Attorney General to understand. We do this all the time. And that is where some time on the cattle farm could help him.

We have a masculine word, bull, we use when we want to specifically refer to a male cow. And we have a feminine word, heifer, we use when we specifically want to refer to a female cow. But we use the word cow when we’re simply trying to distinguish a collection of bulls and heifers from other mammals, like humans.

I’ve never heard of cows wondering if bulls are heifers and vice versa, and that’s why I think the Attorney General telling a judge there’s not a difference between a husband and a wife is a bunch of bull.

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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bridge over the river Kwai

Tennessee’s Attorney General: ‘Winning’ the Battle, Losing the War

Not long ago I again watched the Bridge on the River Kwai. I couldn’t help but think of that movie when I was on the other end of the Tennessee Attorney General’s latest abandonment of our state’s prerogatives under the Tenth Amendment.

The movie is set during World War II. It involves a British colonel and his men who are being held in a Japanese interment camp. The Japanese are desperate to complete the construction of a bridge over the river that is critical to their military success. They are doing a horrible job and it isn’t going to be finished in time.

The colonel believes that he can demonstrate to the Japanese the ingenuity, resiliency, and engineering prowess of the British by building a better bridge and building it in a timely fashion. In the end he realizes he lost sight of the fact that it was a war he and his men were in, not a contest to prove their mettle or their engineering prowess.

And that, to me, is a pretty accurate analogy of what our Attorney General did last week. He lost sight of the “war” that is being fought between the states and the federal government, the U.S. Supreme Court in particular, over our state’s prerogatives under the Tenth Amendment. Instead he focused on the “battle” over whether a statute should be invalidated because of the Supreme Court’s same-sex decision last summer, Obergefell v. Hodges.

You might think that defending the constitutionality of a statute against an attack based on a U.S. Supreme Court decision is defending our state’s sovereignty. But the Attorney General found a sorry way to “defend” the statute.

The statute in question says that if a married woman, “with the consent of her husband,” has a child by artificial insemination, then the child will be the legitimate child of the “husband and wife.” Is there anyone who thinks that the word husband in that statute, when juxtaposed to the other person in the marriage who is obviously a female, is anything other than a male? Apparently the Attorney General does.

The question was raised because a woman whose wife had a child by insemination is now arguing in a case in Knoxville that the Supreme Court’s Obergefell decision makes that statute unconstitutional because it only applies where there is a male husband. Maybe Obergefell extends beyond simply the right to marry to some new right to be a parent. Maybe it doesn’t. She argues that the word “spouse” must be judicially substituted for the word “husband.”

So, to “save” the statute from the possibility of being invalidated, the Attorney General filed a brief last week in which he argues that a Supreme Court decision last summer that redefines who can get married has somehow made a word that was clearly referring to a man when it was used 38 years ago ambiguous and susceptible to interpretation using the gender neutral term “spouse.” In other words, the suddenly ambiguous word “husband” can be “interpreted” in a way to make the gay rights community happy.

What he should be arguing is that family law, particularly that aspect of family law dealing with parent and child, is inherently an object of regulation by that state. That’s what the Supreme Court said in 2013 in United States v. Windsor. Therefore, Obergefell cannot and should not be extended in disregard of Windsor to usurp from the sovereignty of the state yet one more matter of family law.

But, no, winning the battle to keep a statute on the books is more important to the Attorney General than trying to win a war on our state’s sovereignty. It’s a lot like proving you can build a bridge, even if it helps you lose the war.

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 House of Representatives

When Legislators Behave Badly, What Should Be Done?

Twenty-two different people have told the Attorney General that Republican State Representative Jeremy Durham engaged in various kinds of sexual innuendo and relations with them. He has suspended his campaign but has chosen not to resign. What should be done?

Sounds like a question with an easy answer, but it’s not as easy as it looks. Here are some of my thoughts based on twenty-two years in state politics, which included the “pleasure” of serving in office when legislative colleagues were indicted and the “pleasure” of holding a “trial” to expel a colleague only to be sued in federal court for doing so. But before I share those thoughts, let me be clear; I’m not defending Rep. Durham or the conduct he’s been accused of or whatever conduct he has actually engaged in. In fact, given everything, if I were him, I would resign, but that’s not where we are.

Should the Legislature remove him?

This is a bit tricky because to say “no” is to risk being accused of winking at the behavior of which Rep. Durham’s been accused or condoning his behavior. But I would say in this particular case, “Go slowly because the precedent you set could prove problematic.”

Politics can be a dirty business. Power is a great temptation. People will say all kinds of things about others, particularly when not under oath, in order to remove them from power or ascend to a place of power. Accusations do not always prove to be actualities.

Until yesterday, when Rep. Durham admitted that he made some of the statements he was accused of, the Legislature had only unsworn allegations to go on. Of course, it’s fine if the Legislature wants to make its own determinations of guilt and innocence based on unsworn “he said, she said” allegations and denials, but the members may find themselves spending more time on expulsion proceedings than on legislative matters if they start down that path.

Rep. Durham’s admission would ameliorate the potential precedent for incessant “witch-hunts,” but current legislators have a practical issue to consider. While removing Rep. Durham from office now would make a “statement,” the Legislature is adjourned until next January. If the voters don’t re-elect him on August 4th, then should the Legislature be called back into session for some unforeseen reason, his primary opponent would take office anyway. Removing him now will not affect his ability to take office in January if the voters should re-elect him. And that leads to a final consideration.

Were Rep. Durham’s term not at an end as a practical matter, then the Legislature would need to pursue what the investigation has uncovered. But voters start going to the polls today, and they can serve as their own jury. After all, the power of that office in our system of civil government belongs to them. And that brings up my final observation.

One of my associates shared with me a recent commentary in which the author said we have the kind of politicians and laws we have because we, as a people, allow it. If that’s true, and it largely is, then all I can say is “Ouch! Who is going to hold us accountable?”

We can begin to hold ourselves accountable by voting wisely this election cycle. We hope will help you do that.

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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