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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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icon of a woman and icon of pregnant woman, gavel

Tennessee Legislators Seek to Protect You From Judges

I want to thank some of our state legislators for taking a stand on a critical issue on your behalf that you probably know nothing about. Liberals and judges who hope to further transform our form of government to their liking hope that you will not read what follows.

Putting the Transformation in Context

To understand the next step in the judicial transformation of our country, you must understand the context. After 200 years, the U.S. Supreme Court in Obergefell v. Hodges asserted that the U.S. Constitution somehow gave it jurisdiction (power) over the Legislatures in the several states to redefine marriage. But then it purported to impose that definition on the states. Purporting to tell a state what laws it must enact was a huge overreach by the Supreme Court.

Now the question is whether that decision will be used by judges to assert jurisdiction over the state Legislatures to redefine what it means to be a parent and impose that definition on them. That very question will soon be answered in Tennessee.

When is a ‘Wife’ not a ‘Mother’ of a Child?

This question arises because of a lawsuit pending in Knoxville. Two “married” lesbian women are seeking a divorce. Nothing too controversial about that anymore, but what is controversial is whether the wife who is not related to the child biologically is the “mother” of the child. The answer is important because a mother’s custody rights have historically depended on that person actually being the child’s biological mother.

To obtain custody rights, the woman not related to the child biologically points to a statute the Legislature enacted by law forty years ago. That statute says a child will be presumed to be the legitimate child of a “husband and wife” if the wife has a child by artificial insemination with the consent of “her husband.”

Clearly, though, she is not a “husband,” so she argues that the Obergefell decision now requires the Court to “interpret” the statute by substituting the word “spouse” for the word “husband.” Sadly, Tennessee’s Attorney General Herbert Slatery has filed a brief in support of her argument.

Who Gets to Decide the Policy Question?

What our attorney general seems not to understand is that substituting the word “spouse” for the word “husband” is a change in the underlying public policy reflected in the statute. It is a change from a belief that complementarity exists between the biological sexes and that it has value in the nurture of a child to a belief that there either is no complementarity between the sexes or, if there is, it makes no difference in the life of a child. Worse yet, the judge in the case has already said that “no policy [is] being determined by the Court” in connection with this suggested interpretation of the statute!

Legislators to the Rescue

Because our attorney general doesn’t seem to know that there are two different belief systems in conflict here, and that different belief systems affect policy decisions in different ways, 52 state representative and 19 state senators are asking the judge in that case to let them intervene. They want to defend the authority given them under the state constitution to decide how to determine and address parent-child relationships in these new marital contexts. I am proud to represent them.

How This Case Transforms Government

You might think, “Who cares?” since you are not in a same-sex “marriage” and you had children the old fashioned way. Moreover, you may be wondering how this case affects a transformation of government. Here’s the answer.

Our attorney general, with the help of the U.S. Supreme Court’s Obergefell decision, is effectively urging our judges to continue shifting the balance of powers in our government away from elected, accountable representatives to themselves.

When government’s power gets shifted from those you can elect and can hold accountable to judges who you really cannot elect and cannot hold accountable, then power has shifted away from you.

If our judges agree with our attorney general, then their decision will become judicial precedent for rewriting other laws, maybe one you do actually care about. With each such decision, our judges will effectively be shifting public policy decisions right out from under your control. While you watch the state Capitol for “bad” laws, the transformation of government itself is taking place in the courthouse.

If someday you find yourself completely powerless before a black-robed oligarchy, you’ll know why.

Thank God these legislators are fighting for you.

Read the Motion to Intervene


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 flag logo and words family bills

Defining Husband, Wife, Father, Mother (SB 30 / HB 33)

BILL SUMMARY

This is a definitions bill that clarifies that the words “husband,” “wife,” “father,” and “mother,” when used in a statute, are to be given their ordinary meaning based on the biological distinctions between men and women.

BILL ANALYSIS

Provides additional guidance for courts as they review statutory language and consider legislative intent when dealing with parties asking them to re-define “husband” or “wife” or substitute the gender-neutral term “spouse” or to define “father” or “mother” as “parent” – effectively removing biology and procreation as inherent and integral to the family and family law for legal purposes.

Provides guidance for courts as they review statutory language and consider legislative intent when dealing with parties asking them to (A) redefine “husband” or “wife” or substitute the gender-neutral term “spouse” or (B) redefine “father” or “mother” in non-biological ways or substitute for those words a new, non-biological term “parent” – effectively removing biology and procreation as inherent and integral to the family and family law for legal purposes.

BILL SPONSORS

Bowling in the Senate, Ragan in the House

TRACK THIS BILL

Full Text: Senate Bill / House Bill

BILL STATUS

No action taken in the House or Senate.

VIDEO

young husband and wife with baby holding yellow flower

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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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.

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

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