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illustration showing two female stick figured with two children stick figures and an arrow pointing to one of the female stick figured and the question "father"?

Cleaning Up the Supreme Court’s Obergefell Mess

When the U.S. Supreme Court in the Obergefell case decided it could redefine marriage for all the states, it created a mess. Fixing it will take an assist from the states. A decision this week by the same state Supreme Court that first gave us same-sex “marriage” demonstrates the problem. Perhaps Tennessee can help bring about the fix.

In 2003, the Supreme Court of Massachusetts said that the state constitution required same-sex “marriage.” But the state’s Legislature did not revise all the statutes governing family law to reflect this redefinition of marriage. My guess is that no state has changed all its family laws as a result of the U.S. Supreme Court’s Obergefell decision. Tennessee sure hasn’t. And that is what is creating the current mess.

This week the Massachusetts Supreme Court said that a woman was the legal parent of a child her female partner had by artificial insemination. Note: they were not married. The lawyer for the woman not related to the child cited two laws to give herself the legal status of parent (incidentally, the lawyer is Mary Bonauto, who argued for the same-sex couples in Obergefell).

First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus, meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?

Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!

But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”

Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commented on the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy . . . the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”

In other words, she is saying that the U.S. Supreme Court has put the Tennessee courts (and all state courts, really) in the position of having to rewrite all of their state’s family law under the guise of constitutional “interpretation.” However, if they don’t, if they can resist the judicial activism we saw in Massachusetts this week, then perhaps the U.S. Supreme Court, on appeal from cases like the one in Tennessee, will realize it’s going to have to rewrite all the family law in every state and that doing so will be going too far, destroying the Court’s last vestige of legitimacy.

Hopefully, if confronted with situations like these and the contortions in legal reasoning they will have to engage in to reinterpret every state’s family law, the Supreme Court will realize why our Founding Fathers left family law up to each state and will reverse Obergefell.

For that to happen, some state courts are going to have to force the issue back to the U.S. Supreme Court by refusing to do their dirty work for them, and legislators are going to have to resist the temptation to change the wording in our statutes. Legislators need to leave our laws alone and, looking our state judges in the eye, dare them to reinterpret the plain language of statutes they have passed.

The process starts in Tennessee on October 21st when a Knoxville trial court will decide whether the word “husband” in Tennessee’s insemination statute includes a “lesbian spouse.” Stay tuned. The road to returning marriage back to the states may run through Tennessee.


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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target and just married sign

The ‘Fire, Ready, Aim’ Response on Marriage

Like many, I am decidedly not happy with the Supreme Court’s ruling on marriage. While I hoped and prayed for a different result, I had been anticipating this most recent decision for years. Over the last year or so, I’ve been thinking about what we could do if we lost. Right now I have more questions than answers.

Since the ruling, I have been hearing a lot of talk about a special session. Many citizens are demanding that there be one. They naturally and understandably want the legislature to “do something”—either to “stand for marriage” or “stand for the Constitution and state’s rights.”

Taking a Right Stand

I’m all for taking stands and have been doing so for years. But I’ve learned that in politics, as in life, the best course is to do the following:

  • Evaluate a situation fully to understand all the issues,
  • Consider all the possibilities for addressing those issues and their pros and cons in terms of short-term and long-term consequences/implications,
  • Figure out who is on my side and who isn’t,
  • Inventory the “resources” needed for and available to get the job done once I’ve determined what “the job” is
  • Develop a wise strategy to get it done.

That kind of process is exactly the opposite of what has the appearance of a “fire, ready, aim” approach. Generally speaking, it seems that many of the people calling for a special session not only do not appreciate the dynamics of a special session as distinguished from a regular session, but they don’t know yet what it is they want their legislators to do when they arrive for that special session.

I don’t blame them for not knowing what to do, because I’m not confident I know what to do either.

Getting Out of the Marriage Business

Of course, some do think they know what they want our legislators to do. What I keep hearing about is “getting the state out of the marriage business.” That sounds good, but I still don’t know what it means or what a law that “gets us out of the marriage business” looks like.

Surely, they don’t mean that every law on the books dealing with marriage and children will be repealed. If that’s what they mean, then we’ll have chaos. It may get the state out of marriage issues on the front end, but it will not get the state out of family issues on the back end.

If they only mean that the state won’t “officially” sanction a marriage, then is there going to be no definition of marriage? If that’s what they mean, then they need to understand that polygamists will be signing up tomorrow, and the state has no argument to make against it. I’m not for that.

But if there is going to be a definition of marriage, then what is it going to be? It will be either one the Supreme Court will like, which legislators won’t want to vote for because it will be genderless, or it will be one that a federal judge will enjoin the minute it passes. This will effectively accomplish nothing other than giving folks the satisfaction of “making a statement,” subjecting taxpayers to paying the attorney’s fees of the ACLU, and getting a County Clerk arrested by U.S. Marshals for disobeying a federal court order.

I want to do something, but I want to see the legislature do the best thing possible that will actually accomplish something positive.

Reconstructing Marriage

One thing that might be possible and have a positive effect long term is to look at legislation that would begin to reconstruct marriage by re-instituting the elements of marriage that heterosexuals took out of the definition years ago, for example, the notion of permanence we removed with no-fault divorce laws.

But I don’t hear anyone talking about that. That kind of bill would be hard work, and it might not be liked too much by heterosexual voters who view themselves as having a “right” to walk away from a marriage if they are no longer in love or are unhappy

We’ve not had a discussion about that aspect of marriage for a long time. But if we’re going to talk about marriage, why not talk about all aspects of what constitutes a marriage?

Taking What the Court Gives

Interestingly, the Court has left the aspect of marriage dealing with permanence open to the states to talk about and act on. I have to guard against my tendency to want to attack the Supreme Court for completing the journey to the deconstruction of marriage and to avoid talking about any complicity I might have in initiating that journey or in allowing it to proceed unabated for decades. The former is an easy conversation and the latter not quite so pleasant.

We’ve got a long, slow journey back to a right understanding of marriage, and in my opinion, we need a much deeper, broader, and serious discussion about how to get there than the ones I’m hearing now.

For an excellent series of articles by Jennifer Roback Morse of the Ruth Institute on whether “getting out of the marriage business” is possible or practical, check out the following links:


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

words "Not married" on car window

The Missing Link: Marriage and Money

Two news stories, today, caught my attention. The first noted that there was a shrinking middle class, with nearly 50% of Americans now being classified as below the poverty level or low income.  The second story noted that the marriage rate is continuing to decline.  Is there a correlation?  Are we missing an important link?

Before looking for an answer in social science data, let’s look at how we might view the two stories based on the perspective from which we might view the world.

From a worldview perspective those who come from a secular humanist perspective  would look at the first article on poverty and probably assert that  the problem is related to circumstances, lack of good education in the public school system, the government (either through its laws and programs or lack thereof), or “the economy.”  It certainly would not be the product of a moral problem and, as a consequence, the second article is interesting but not related to the first.

For those who might look at the first article form a Biblical worldview, they would tend to look at the second article, about the decline in marriage, and say that the second story reflects that the fact that the poverty in the first story is more of a moral problem.  And the moral problem is, namely, our societal loss of understanding related to the God-ordained nature of marriage and sexual expression, the family, and parental responsibilities.

But, apart from worldview, the social science data shows that the breakdown of the family has a tremendous impact on poverty and the shrinking of the middle class.  Here is some data from the Marriage and Religion Research Institute’s recent study on the relationship between the economy and marriage:

  • There is the 10 IQ point advantage for those children whose early childhood was spent in a stable, caring family.  D. Armor, Maximizing Intelligence, Transaction Publishers, 2003.  This comprises a National Longitudinal Survey of Youth analysis.
  • Married men experience the “marriage premium” in earnings compared to unmarried men.  This decline in marriage deprives the economy of the remarkably large effect of marriage, a 0.9 percent income increase per year for married men, which, to put it in context, is nearly as large as the income increase for years experience on-the-job 1.
  • From 1980 to 2010, there was a decrease in annual GDP growth.  During these decades that average growth was roughly three percent.  From 1980 to 2010, population growth contributed more than one percent to this three percent growth (cf. Chart 2).18  However, due to the post-1960s/1970s massive rise in contraception and abortion, the number of children in the average American household fell by 50 percent.  This now-embedded population trend will give us barely one-half of one percent of GDP growth contrasted to the prior one percent.
  • With $2 million as the median lifetime earnings of the U.S. household, the long run effects of the sexual revolution of the 1960s and 1970s [approximately $100 trillion:  $2 million x 50 million heads-of-households lost] dwarf any other factor in the macro-economy.

Consequently, the income levels of the families of this new economy cannot financially support our needs the way they once could.  Hence, government has had to go overseas more to find purchasers.

For additional data substantiating the link between marriage and poverty, check out this study by the Heritage Foundation.

Sadly, the young woman noted in the Tennessean article on poverty is 18.  Having a 7 month old baby means she was probably pregnant at age17.  And she and the baby’s father were never married.  As the research showings, finishing high school and waiting to have children until after one is married greatly reduces the likelihood of poverty, as much as 82% (see page 4 of this study from the Heritage Foundation)

It is tragic that some continue to learn the hard way the truth about the reality of moral restraints and boundaries that are as real as the laws of science. And it’s even more tragic that an increasing number don’t seem to learn at all.

The bottom line is that freedom from moral restraints and boundaries exacts a high cost from everyone.  And the civil government doesn’t have enough money to bail us out.  More self-government, not more civil government, is what we need.

  1. 2 percent per year
Sex spelled with connecting the dots

The Sex Connection

If you’re ready to connect some dots that liberals refuse to connect, then keep reading.  A study by a University of Iowa researcher, Anthony Paik, published in the Journal of Marriage and Family (April 2011) is just one more piece of evidence that you can’t divorce social policy and fiscal policy.

The study shows that 31 percent of women who had sex for the first time before age 18 divorced within five years, but if they waited until adulthood, the rate dropped to 15%, a drop in the rate of 50%!  And comparing these two groups at 10 years, 47% of the marriages ended in divorce if they engaged in sex before the age of 18. But again, if they waited until adulthood to have sex, then the rated dropped to 27 percent, a drop of 42%!

Here’s the point: the younger you start having sex the more likely your eventual marriage will end in divorce. Now why is this important?  It’s important because the risk of winding up in poverty goes way up when divorce occurs.  And that cost to Tennessee taxpayers in state tax dollars is actually over $700 million annually.

Want to save tax dollars and want to cut down on poverty?  Then lets make sure our school sex ed programs are not promoting, encouraging unmarried sex and just winking at abstinence.