law books and gavel

Will I Lose My Law License?

The Tennessee Supreme Court will soon be considering a proposed change to the rules of ethics that govern licensed attorneys that could well result in my disbarment because of the things I’ve written the last few weeks about marriage.

The proposed change adds a commentary to illuminate the intent behind our rule prohibiting discrimination. The proposed commentary says it is unethical for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” (emphasis supplied)

The Supreme Court provided attorneys an opportunity to submit their opinion about the proposed commentary. I suspect that the opinion I filed with the Court was rather unique. Here is an abbreviated version of what I said:

I hereby voice my objection to the new proposed Rule 8.4 . . . because, to my knowledge, neither the Board of Professional Responsibility nor the Tennessee Bar Association have provided a foundation upon which the meaning of the word “discrimination” and its grammatical variations can be determined and, therefore, it has not provided a basis for determining that the various listed offenses are, in fact, discriminatory or how a lawyer can know or reasonably know whether his or her actions are, in fact or in principle, discriminatory.

Law, in order not to be arbitrary, must rest upon sure and fixed standards and definitions. To do otherwise is what prior generations of legal philosophers would have called lawlessness.

Unless any act that anyone claims to be discriminatory is going to be held discriminatory by all, then there must be some standard by which an act is determined to be unethical and unjust discrimination. Otherwise, we who are to be defenders of the law have become lawless and rightly susceptible to claims of injustice.

For instance, the current commentary to current Rule 8.4 prohibits discrimination on the basis of age. But TCA § 36-13-506 uses age as a basis for discriminating against the treatment given different perpetrators of rape. There is “mitigated statutory rape” and “statutory rape,” as distinguished from rape. Are those laws unethically and immorally discriminatory, and would the advocacy in favor of keeping those laws in favor of all rape being treated the same, regardless of the victim’s age, be unethically discriminatory?

Many would scoff at this example, but those who scoff at the serious question of the basis upon which we determine something to be ethical and justifiable discrimination or unethical and unjustifiable discrimination expose their ignorance. Even by saying my example is a poor one and irrelevant, they are, in fact, exercising a form of discrimination, discriminating between examples they believe to be relevant and those they believe to be irrelevant and doing so on the basis of a standard for determining relevancy.

Their scoffing betrays the denial of the question I beg this Court to answer—Is there a standard upon which we have determined that discrimination proposed in this new commentary on our ethical obligations is good or bad, and what standard will be applied to future claims of discrimination?

This becomes particularly problematic given that the proposed commentary on the rules prohibits conduct “the lawyer knows or reasonably should know is harassment or discrimination.” If one holds to certain belief systems, for example, the beliefs flowing from the orthodox, historic doctrines of Christianity regarding the nature of human beings and human sexuality, the nature of the social order, and natural law, then a lawyer saying or doing something consistent with those beliefs would not “know” or “reasonably know” his or her comments or actions about same-sex marriage or “sexual orientation” to be discriminatory. Rather, for that lawyer not to say them would be a denial of his or her core beliefs.

Until this Court, the Bar Association, and the Board of Professional Responsibility can articulate for the members of the bar a standard for determining which acts constitute discrimination that should be prohibited and those which may be allowed, in my view none have any business proceeding on what would be an undefined and therefore arbitrary basis.

Arbitrary, rootless law grounded only in the excogitative genius of those who then happen to control the apparatus of power is the definition of tyranny and is a threat to liberty, not just to me, but to all.

As George Mason, delegate to the Constitutional Convention of 1787 said, “No free government or the blessings of liberty can be preserved to any people but by . . . frequent recurrence to fundamental principles.”1 I beg of this Court to consider those fundamental principles.

So, proceed as you must, but know that for me, I stand on the side of Patrick Henry—give me true liberty, even if it means you take my license.


  1. Quoted from Charles Warren, The Making of the Constitution, 804.

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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Republican elephant and the silhouetter of a man with a question mark over his head

Am I a RINO?

As I’ve watched Republicans over the last few years, I have developed an uneasy feeling that I am becoming a RINO, a term which, to the political novice, means “Republican In Name Only.” That may shock my conservative friends, but you may be a RINO, too.

To appreciate what I mean, let me provide a little context.

The Function of Law

I see law as having primarily a “negative” function. In other words, for me, law should function more like the Ten Commandments, which are “negative” in that they “negate” or restrain certain actions—the “thou shall nots.” The law identifies an evil—for example, various forms of stealing, dishonest dealing, killing, and destruction of private property—and seeks to prevent it. When law’s function is primarily negative, its function is rather modest.

The opposite view is to see law’s function as “positive.” Those who believe law has a positive function think the law’s function is to affirmatively improve the lives of people. Law’s function is to make your life better.

The Implications

I readily admit the positive view of law is more appealing than the negative view, particularly in our culture. Today, no one likes to be told no; “thou shalt not” is not popular. And passing laws to make folks lives better just sounds good and altruistic.

But when civil government thinks its job is to use the law to make a citizen’s life better, the government is now in the position of defining for you what makes your life better instead of you. And when making my life better is the government’s function, then government can come up with all kinds of things it thinks it can do for me to make my life better. Government gets bigger and bigger doing all its good things.

What That Means for Republicans

Republicans are people, too (though liberals might assail that assertion), and they don’t like being labeled “the Party of ‘No’.” So as I’ve watched members of Congress and the state Legislature over the last few years, I have found an increasing number of Republicans wanting to “do things” for people to improve their lives.

I also have this uneasy feeling that an increasing number of Republicans believe a strong economy is the government’s responsibility, that its function is to affirmatively “do things”—make “investments” with other people’s money—to make sure our economy is strong.

On top of that, many Republicans increasingly want to solve people’s problems and save them from the consequences of their wrong decisions. If they don’t, then they are hard-hearted, mean-spirited, uncaring, and uncompassionate. Of course, it takes lots of government programs paid for by other people’s money to protect the foolish from themselves. And, of course, the foolish tend to continue being foolish, which creates a demand for more government programs.

One way I plan to test my theory is to watch over the next several months as Republicans announce their gubernatorial aspirations. I want to see if some or all of them say something about wanting to help people, improve the lives of people, make things better for people, etc. I want to see if, by their statements, they effectively volunteer to shoulder responsibility for the state’s economy.

Are ‘Old’ Republicans the New RINOs?

It used to be that Republicans said things like President Reagan said, “government is not the solution to our problem; government is the problem,” and “the most terrifying words in the English language are I’m from the government and I’m here to help,” and “where government has gone beyond its limits is in deciding to protect us from ourselves,” and “all great change in America begins at the dinner table.”

But those kinds of Republicans are fast disappearing, being replaced by the new breed of Republicans, who increasingly are just like Democrats—they think government is the solution; they would just go about it a bit differently from the Democrats. Like the Democrats, they now see the law’s function as positive.

So, if that is now what being a Republican means, I guess that makes the old RINOs the new real Republicans and makes me the new breed of RINO. My, how times have changed!

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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classroom seats

The Undoing of Title IX

Title IX of the 1972 Education Amendments was passed to ensure equal opportunities in education for biological females. It has been applied in numerous contexts, from increased allocation of funds to women’s athletics to allowing women to have housing and dormitories that are comparable in quality to those provided to male students. Title IX addressed an important need: the unequal treatment of biological female students in relation to the treatment of biological male students.

However, the entire purpose and effect of Title IX may have just been nullified by a recent federal court decision that held the definition of “sex” is “susceptible to more than one plausible reading.” The court declared the relevant statute, which says schools “may provide separate toilet, locker room, and shower facilities on the basis of sex,” is “ambiguous” and could be read to encompass biological males who identify as females.

Following the logic of the Fourth Circuit Court, Title IX can now be considered to ensure equal opportunities in education for girls and boys who identify as girls. The Obama administration did so in recent guidelines it sent to all public school districts on the subject. Yet in statutory construction, words have singular meaning throughout, so if the word “sex” is changed in the section related to bathrooms, it is changed for the entire statute.

The dissent picked up on this glaring problem, and wrote that such a reinterpretation of the term “sex” as applied to the whole of the statute would “render Title IX and its regulations nonsensical.” The majority even partly conceded that point, saying, “We agree that ‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.”

This is an implicit acknowledgment that they have altered the entire statutory scheme of Title IX. Thus, if “sex” now means gender identity and not biological sex, then there is no real, functional purpose left for Title IX. An anti-discrimination law that affords special protection for women but also allows men to garner the same protection under the same law is absurd and illogical.

If the legal status of protected classes like race and sex are now based on an identity and not one’s actual race or sex, then it is reasonable to question the need or efficacy of all anti-discrimination laws. Any connection between law and reality has been severed. If a male can legally become a female by mere identification, what is to prevent someone from becoming a different race or age if he or she identifies as such?

We are now entering an era in which reality has become subjective, not in the Platonic sense, but as actual legal status having the force of law. The legal system is at a tipping point: is it going to address objective realities or be subject to the vagaries of judges deciding if someone’s identity trumps another’s anatomy? The age-old maxim of “justice is blind” is now a relic, as Lady Justice no longer wears a blindfold and judges are now actively picking and choosing whose liberties they value more by mandating compliance of the many to the will of a few.

This decision is yet another in a string of cases in which judges place their personal policy concerns over legal reasoning, statutory language, and, incredibly, students’ rights to bodily privacy. Results-oriented jurisprudence causes chaotic results in a precedent-based system because there is no legal rhyme or reason for how the judge reached a conclusion. This leaves states to sort out the collateral damage that comes with implementing a judicial decision without a coherent legal framework. In this case, two judges redefined “sex” under Title IX to get the result they wanted without addressing the ramifications of changing what it means to be a woman and the new effect that now has on Title IX.

The same justice system that provided liberty to millions with landmark anti-discrimination laws is now undermining those very laws by investing legal status in one’s psychology at the expense of his or her biology. The practical result is that vital anti-discrimination laws like Title IX may be rendered useless by the ironic efforts of those preaching “inclusion” and “tolerance.”

Zack Pruitt is a Legislative Liaison with Alliance Defending Freedom and formerly FACT’s Director of Public Policy.

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Supreme Court judges, photo of Kim Davis

Kim Davis Shows Supreme Court Wears No Robes

Kentucky’s Kim Davis has disrobed the five members of our Supreme Court, exposing the lawlessness of its decision that state laws conforming to natural marriage were unconstitutional. Let’s hope our state legislatures don’t become complicit in the Court’s lawlessness.

Most news stories so far have focused on the religious liberty issue Ms. Davis raised when she said that she could not issue a marriage license to couples of the same sex because in doing so she would be violating the higher law of God which says marriage is only between a man and a woman.

What Law Is Ms. Davis Violating?

But Ms. Davis’ refusal to issue a license raises a very practical legal problem as well, namely, what law authorizes her to issue a license to two people of the same sex? Clearly, Ms. Davis has no inherent authority to decide who she can and cannot issue a marriage license to.

To understand the practical problem Ms. Davis’ refusal creates, we need to appreciate that there are two kinds of statutory laws, positive and negative. The first, “positive laws,” direct someone to do something. The second, “negative laws,” forbid someone from doing something. This limitation on the types of laws presents a problem for Supreme Court Justices who want to require someone to do something the law doesn’t authorize them to do.

For example, if the law requires a clerk to issue a marriage license to two people of the opposite sex, and the clerk refuses, then the Court, exercising judgment, can direct the clerk to follow the positive law.

And the opposite is also true. The law prohibits incestuous marriage. If a clerk begins to issue licenses to mothers and her children, the Court, exercising judgment, can direct the clerk to stop violating the negative law.

But in the marriage case, we have a positive law directing Ms. David to issue a marriage license to two people if they are of the opposite sex. The Supreme Court, exercising judgment, could direct her to issue those licenses if she refuses to follow the law. Likewise, the Supreme Court could direct her not to issue licenses to those in an incestuous relationship if she was violating that law.

But what law is there that the Court can direct her to follow or prohibit her from violating when it comes to same-sex couples? There isn’t one!1

Does the Supreme Court Judge the Law or Make the Law?

Some would say she has to comply with the Supreme Court’s order, but that’s the problem. A court, by definition, can only exercise what our Founding Fathers called “judgment.” It cannot exercise what they called “will,” by which they meant that it could not make law.

So, the Supreme Court has created a problem. The five black robed legislator-jurists did not say it was unconstitutional for a clerk to issue a marriage license to two people of the opposite sex. That law is still good. But the Court can’t “pass” a law that authorizes a clerk to issue licenses to two people of the same sex (or three or four people, for that matter—this issue will come up again!).

It seems to me that Kim Davis’ best legal argument is that there is no law for her to follow, to apply, that would authorize her to issue a license to two people of the same sex, and the legislature has not passed a new law authorizing her to do so.

So, when asked by the press by what authority she is refusing to issue marriage licenses to same-sex couples, she should ask her inquisitors by what statutory authority she is supposed to issue them licenses.

Will Legislators Do the Supreme Court’s Dirty Work?

That argument, as opposed to the religious liberty one, raises a very interesting legal question if the Kentucky legislature never passes a law that essentially codifies what the Supreme Court said. If legislatures do enact those laws, then they will have been suckered into doing for the Supreme Court that which it had no power to do—pass a law.

I have a feeling a showdown is coming if Ms. Davis holds the line and Kentucky (and hopefully Tennessee) doesn’t do the Supreme Court’s legislative work for them.

In sum, I thank you, Ms. Davis, for helping us see that the only truly lawless folks in America in relation to the same-sex marriage issue are Justices Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer. You’ve helped us see that they are not wearing judicial robes, just suits like those worn by every other politician.

1Some will say Ms. Davis is violating the “negative” law that banned same-sex “marriages,” but there was no law banning such marriages, like there is a law banning incestuous marriages. That is why you never heard me refer to our law defining marriage as a “ban” on anything. If our law was a “ban” on same-sex “marriage,” then it arguably was a ban on anything and everything someone might dream up and want to call a marriage, not just same-sex “marriages”! The press (and, unfortunately, many conservatives), in referring to our marriage law as a ban, helped create this confusion. Words matter!

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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gavel and doctor with stethoscope

Death With Dignity Highlights the Dying Art of Substantive Politics

Of the hundreds of legislative committee meetings I’ve sat through the last twenty years, Tuesday’s meeting of the Senate Health and Welfare Committee was one of just a handful that I wished people could have watched. At issue was legislation that would authorize a physician to prescribe a lethal dose of medication to a terminally ill person. I hope I can do justice in describing what I observed.

First, the hearing itself was done correctly. To take time to really study an issue is increasingly rare, as it seems the goal during our recent legislative sessions has been speed—to see how fast you can go and fix any mistakes next year. Pace seems to be increasingly more important than process.

Passing a flawed bill that will bring about the death of another human being is not something to hurriedly “study,” pass, and then “fix” later. Somebody’s death may be the reason you realize the bill needs fixing.

Second, I observed a civility that is increasingly lacking in politics. John Jay Hooker, the citizen whose rapidly debilitating cancer prompted him to push for this legislation, was there to speak. Mr. Hooker is a Democrat, in fact, a former candidate for Governor favored to win election. He lost to Winfield Dunn, who was sitting in the room.

Here former political rivals were together, not because they necessarily agreed with one another on the issue (Mr. Hooker said Mr. Dunn’s presence wasn’t an indication of political support), but because friendship transcended whatever differences they may have had or still have politically. It was a touching thing to see.

Third, I observed testimony that bore an uncommon weightiness. It was more substantive than political. The issue, not the person, was attacked. It was fitting of a bill that raises profound questions relative to what it means to be human, how we determine ethical questions, and even the meaning of the rule of law.

For example, comments about how we’d put our animals out of their suffering raised the issue of whether man is nothing more than an animal. Though it was not explored, the comparison should force us to ask whether man is nothing more than an animal or is a spiritual being unlike an animal. If they are different, then the comparison is emotionally appealing but theologically and philosophically distinguishable. In fact, the comparison loses its persuasiveness.

As to ethics, the unspoken issue was how we know what is right in these situations. For the person who does not believe in supernatural revelation or at least the clarity of that revelation relative to this situation, is right and wrong determined by emotion and feeling or by our minds and reason? In these hard and unpleasant situations, it is easy for emotion to overrule the mind.

Last, whether intentionally or not, the physician from Oregon who testified in support of the bill raised the issue of the rule of law by stating plainly the real issue, which, to be honest, the other learned proponents of the bill largely skirted. The bill, he said, wasn’t about whether there was some right of self-determination, but whether one person had the right to have aid from a third person in taking his or her life. It was refreshing to hear his honest answer: no. Thus, the issue was whether to give legal immunity to a person who was essentially acting in concert with another to bring about death.

But this raises the question of whether the law can make right that which may not be right. For example, in a more clear-cut situation, the question would be whether murder is wrong only because the law says it’s wrong. Or to put it conversely, does a law authorizing murder make it right or only legal?

At issue is whether there is a law higher than man’s law by which man’s law can be deemed just or unjust. The belief that there is such a law was the real, original meaning of the rule of law. Today we’ve reduced its meaning to a question of whether the procedural rules for engagement were followed.

To see these kinds of issues being raised, even if not addressed fully or answered, in a politically civil and deliberate way was a refreshing change of pace.

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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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