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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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Motion to Intervene in Knoxville Insemination Case Denied

This week, Judge Greg McMillan of Knoxville ruled that 52 state legislators would not be allowed to argue that a state statute referring to children born by insemination to a husband and wife should not be interpreted in a way that would substitute the word “spouse” for the word “husband.” The court said that interpreting the statute to treat children in a mother-mother family the same as a mother-father family was not a “policy” issue. Sadly, the attorney general of Tennessee believes that the judge should rewrite the statute, too.

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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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FACT Files Motion to Intervene in Knoxville Custody Case

FRANKLIN, Tenn. (September 9, 2016) —Today, the Constitutional Government Defense Fund, an initiative of The Family Action Council of Tennessee, Inc. filed a Motion to Intervene on behalf of fifty-three Tennessee state legislators in a very important case flowing from the U.S. Supreme Court’s same-sex marriage decision last year, Obergefell v. Hodges. The case tests the extent to which Obergefell dictates policy results in other areas of family law and transfers those policies to the judicial branch.

The Motion was filed in a divorce proceeding pending in Knoxville involving a marriage between two women. During the marriage, one of the women conceived a child by artificial insemination. The issue involves the custody rights of the woman who has no biological relationship to the child.

The controversy centers on a statute that deems a child born to a “married woman” by means of artificial insemination, with the consent of the “married woman’s husband,” to be the “legitimate child of the husband and wife.”

The two women have asserted that that statute, enacted in 1977, is unconstitutional if it is applied according to the plain meaning of the words used and is not interpreted by the courts to apply to same-sex marriages.

David Fowler, attorney for the legislators, said:

“These legislators are to be commended for taking quick action in the midst of campaigning and preparing for a special session next week. They understand the importance of this case constitutionally. This is not a case involving the policy that should be applicable in situations such as this. Rather, this case involves a very important constitutional question—Does the U.S. Supreme Court’s Obergefell decision authorize judges to determine for state legislative bodies what policies it must have relative to custody issues in divorce proceedings? If it does, then matters of family law, which have historically been within the constitutional powers of the states to determine, will have essentially been judicially taken from the states and placed in the hands of federal judges.”

“I hope their constituents appreciate the fact that they are defending the will of the people, who, through their state constitution, vested the power of determining public policies issues in the legislative branch that is directly accountable to them and for defending our state’s sovereignty from further encroachment as a result of the Supreme Court’s Obergefell decision,” Fowler concluded.

Media Contact: Laura Bagby, Director of Communications  |  Office Phone: 615-261-1338  |  Email: laura.bagby@factn.org

How to Shut Down the UT Inclusion Police

The University of Tennessee at Knoxville’s Office of Diversity and Inclusion has been at it again. The same office that said we should stop using offensive personal pronouns like “he” and “she” in the fall recently rained a little of the Grinch spirit down on campus. And as before, UT will do nothing about it. But I understand why they won’t. In fact, maybe they can’t, at least not without some help from the legislature.

This time UT’s Office of Diversity and Inclusion, which I refer to as the Inclusion police, were afraid people would do Christmassy things on campus and offend those who are not of the Christmas spirit. They wanted to make sure folks on campus didn’t send invitations to parties that might contain offensive themes like “Secret Santa.”

To be charitable, perhaps the Inclusion police just wanted to shield people from thoughts of Santa because it might make them think of Christmas, which, in turn, might make them think of Christianity. After all, the Inclusion police probably think Santa is a major figure in the Christmas story found somewhere in the preamble to Second Luke. (Insert tongue in cheek.)

The Inclusion police were firm. Don’t try to “disguise” your Christmas Party!

This would all be just silliness if it weren’t so serious. The reason it is so serious is that these leaders of education do not know how to think. You really can’t think straight unless you think in terms of the law of non-contradiction. Don’t stop reading if you don’t know what this is. You apply that law every day.

The law of non-contradiction, stated philosophically, says something cannot be one thing and, at the same time and in the same relationship, be something else. Those are fancy words for saying that you can’t go up the stairs and down the stairs at the same time.

If UT had a philosophy department that wasn’t intolerant of those who believe in the law of non-contradiction (such professors would be too old-fashioned), then surely someone from that department would have told UT’s Chancellor, Jimmy Cheek, and the head of the Inclusion police that you can’t tell folks not to talk about Christmas and secret Santa parties and still include and make welcome on your campus those who do want to talk about Christmas and have secret Santa parties. Can’t do it. Impossible.

That UT’s leadership apparently doesn’t understand this is more than enough reason for legislators to demand that Cheek resign and the head of the Inclusion police be fired—not because they do embarrassing things that offend alumni and Tennesseans, but because they are not clear enough thinkers to be involved in educating others.

But here’s the downside. If the UT Board of Trustees did the right thing and fired them, then we’d probably have students holding sit-ins in the administration building, because everyone would assume that UT doesn’t care about inclusion and diversity.

So UT has created a mess by coddling a bunch of students and turning their agility-to-think button into the “off” position. And now it can’t help but step in it all the time.

To avoid student protests if UT’s Inclusion police are fired, UT is going to continue doing inane things that the public recoils at. After all, the Inclusion police have to do something if they’re going to get paid. They’ll come up with some more stuff like in the past. And UT officials will have to tromp down to the legislature every few months to apologize.

But that could stop if some legislative leaders would step in and do something to help them, such as telling Chancellor Cheek and the Inclusion police they can “voluntarily” resign or have their administration budget cut in half.

If that were to happen, then the administration might be too busy actually running the real business of UT to worry about who is being offended by whom. And there wouldn’t be any time or money for those offensive Secret Santa parties next year.


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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