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.

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

Invite David Fowler to speak at your event

TN Senate Bill 30 / TN House Bill 33


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.


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.


Bowling in the Senate, Ragan in the House


Full Text: Senate Bill / House Bill


Check back to find out the status of this bill.


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.

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

Invite David Fowler to speak at your event

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.

Invite David Fowler to speak at your event

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.

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

Invite David Fowler to speak at your event