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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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TN Legislative Prayer Caucus Focuses on Religious Liberty

Started midway through last year’s legislative session, the Tennessee Legislative Prayer Caucus is a nonpartisan weekly prayer group open to all lawmakers. As part of the national Congressional Prayer Caucus Foundation, the group at the state Capitol boasts about 30 members and is focused on preserving religious liberty, upholding the nation’s Christian values, and prayer.

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Texas AG Takes Supreme Court Judges to School

I have really come to admire Texas Attorney General Ken Paxton. After suing the Obama administration more than forty times in the last eight years, the Texas attorney general has now asked the Texas Supreme Court to stick to judging instead of lawmaking and to limit the reach of the Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. In doing so, Paxton’s brief gave the judicial branch an excellent primer on the limits of its authority.

The Texas attorney general has told the Texas Supreme Court that the Obergefell ruling does not require Texas to apply all the state’s laws related to heterosexual, natural marriages to same-sex “marriages.” The point of the lawsuit isn’t whether the state Legislature should, for policy reasons, treat both types of marriages the same for all purposes, but whether the state’s courts should apply the Obergefell decision in a fashion that takes those decisions away from the state Legislature.

‘Sloppy’ Talk Makes for ‘Sloppy’ Decisions

The Texas attorney general’s brief begins with the following noteworthy statement to which I would add a hearty Amen! “State courts tasked with applying Obergefell should bear in mind foundational concepts of federal jurisdiction that are often ignored in the regrettably sloppy public discussion of U.S. Supreme Court rulings.”

Indeed, the public discussion about what the “ruling” in Obergefell did and did not do has been sloppy. In fact, as I’ve previously noted, it’s been sloppy even within the office of Tennessee’s attorney general. What’s been sloppy is the jurisprudential fact that it is the “judgment” of the Supreme Court that is key, not the opinions of the justices.

Opinions Are Not the Constitution

As Attorney General Ken Paxton explained:

A federal court may or may not choose to write an opinion to explain the basis for its judgment, but every word of that judicial opinion does not thereby become constitutional law that binds other branches of the state and federal governments. While the judgment in Obergefell is authoritative, Justice Kennedy’s lengthy opinion explaining that judgment is not an addendum to the federal constitution and should not be treated by state courts as if every word of it is the preemptive law of the United States. (emphasis in the original)

And that leads to the next important jurisprudential fact that Paxton noted and about which we’ve gotten sloppy: “[A] federal district court judgment against state officials does not amend the Texas Constitution or the Texas Family Code. And it most certainly does not require state courts to act as if those provisions of Texas law no longer exist.”

In other words, there are laws in Texas that the Obergefell Court did not rule on, and they are still good law until some court rules that they, too, are invalid or the Legislature changes them.

Different Issues Must Be Treated Differently

Attorney General Ken Paxton summed up the preceding statements by noting that state judges cannot confuse “what five Justices of the U.S. Supreme Court said in explaining” the judgment in Obergefell—a right to marry case—with “different constitutional questions in a different case”—cases deciding how laws applicable to heterosexual couples apply to same-sex couples.”

For example, incest laws prohibit siblings, a brother and a sister, from marrying, ostensibly because of genetic abnormalities should they reproduce. But should we apply that “equally” to two brothers who want to marry even though they can’t produce offspring?

To allow marriage between the brothers and not between brothers and sisters because one can’t produce offspring and the other can is to treat them differently, arguably a violation of equal protection according to liberals. But to treat them differently is to recognize that the two sexual combinations are, in fact, different, an anathema to liberals. Can the Legislature treat the two differently, or does Obergefell require that they are treated the same?

Obergefell didn’t decide that question, and Justice Kenney’s majority “opinion” in that case can’t be mechanically applied to decide this different kind of case.

Federalism and the Rule of Law Are at Stake

The Texas attorney general concluded by emphasizing why state judges should not willy-nilly rewrite and reinterpret state laws to make them “fit” this new kind of marriage, which the existing statutes did not contemplate. “Principles of comity, federalism, and the rule of law should make state courts particularly wary of using the federal constitution to expand upon newly created substantive due process rights that have the effect of undoing the work of state lawmakers,” he said.

In other words, state judges should not abdicate the state’s rights relative to family law to federal judges (“comity” and “federalism”). And they shouldn’t engage in legislating from the bench (the “rule of law”); legislating is the “work of state lawmakers.”

What Will Our Legislators Do?

This session, Tennessee’s legislators will have a chance to vote on bills designed to prevent state courts from “undoing the work of state lawmakers” and help them stick to judging the law, not rewriting it. Let’s hope our legislators will stand up for federalism and the rule of law in Tennessee as well as Attorney General Paxton did for Texas.

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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A Political Lesson I Learned the Hard Way

I’ve learned some lessons the hard way. One of those lessons I learned was when I got sued in federal court and lost. I couldn’t help but think of that lesson as I’ve observed the recent goings-on in the state House.

That lawsuit was by a state senator against me as a state senator and the rest of my Senate colleagues. We were sued because we had voted to oust Sen. Ophelia Ford, whose narrow election to fill the seat vacated by her brother, John, was clouded by proof of votes cast by deceased individuals and convicted felons who could not vote.

Sen. Ford and a few of her constituents sued us to stop her ouster. The above picture is of us walking to the federal courthouse the morning of the hearing that eventually overturned our vote to remove her.

Here’s how the Commercial Appeal described the scene that morning:

“The crowded courtroom was packed with Ford’s supporters and political opponents—as well as 15 senators—who listened to a day’s worth of mostly technical testimony on election laws and procedures. Because the courtroom was so crowded, 14 senators sat in the jury box.”

In overturning the Senate’s vote, the Court said:

“[T]he Senate, in its wisdom, may vote to void an election, but only after it has developed and applied statewide uniform standards that govern which votes will be counted, practicable procedures to implement them, with an orderly mechanism for judicial review of disputed matters that may arise.”

When the litigation was over, the federal judge awarded the plaintiffs $117,263 in attorney fees, costs, and expenses.

Given that experience, when Democrats called for a special session to remove Rep. Jeremy Durham so that he wouldn’t get the pension that the Legislature was about to vest in him, I couldn’t help but wonder if a lawsuit might materialize. While the Legislature may have complete freedom to oust a legislator for reprehensible behavior, the government cannot remove a property right, which a pension is, from any person without due process of law.

I hope Mr. Durham doesn’t sue, and if he does, he might not win, since the Ford situation did involve a different legal issue. But given the process that was used to oust him, one has to wonder if another federal judge might conclude that there was no “orderly mechanism for judicial review of disputed matters,” overturn the result, restore Durham’s pension, and make taxpayers pay his legal fees.

While we wait to see if that lawsuit materializes, a second, different type of problem has arisen from the fact that the process by which Mr. Durham was ousted was instigated by a newspaper investigation, not a formal ethics complaint.

This is what I said about it on July 15th in my blogpost:

“I would say . . . ‘Go slowly because the precedent you set could prove problematic.’ Politics can be a dirty business. Power is a great temptation. People will say all kinds of things about others, particularly when not under oath, in order to remove them from power or ascend to a place of power. Accusations do not always prove to be actualities.”

Of course, newspapers don’t have to care about precedent.

But the precedent that some in the media pushed for reared its potentially ugly head this week when Rep. Billy Spivey went public with an alleged complaint by a staff member about alleged misconduct by the Chief Clerk in the House, an appointee of Speaker Harwell. The staffer’s alleged complaint allegedly resulted in no disciplinary action. The allegation brought a swift rebuttal from the Speaker, who alleged that Rep. Spivey’s actions were political in nature.

That is a lot of alleging!

Of course, I have no idea if the staffer’s complaint is valid, whether any complaint was handled appropriately, what Rep. Spivey’s motives were in bringing up the matter publicly, or if the Speaker’s assessment of those motives is accurate.

I like and respect both Rep. Spivey and the Speaker, so I’m not trying to impugn either of them. But I do think we may be seeing the future of how allegations of misconduct are going to be handled and how they may play out politically if something’s not done.

No one’s asked for my opinion, but giving opinions is what a blog is for. And in this case, I believe a firm rule needs to be established next year by the Legislature for what is required to bring about a disciplinary investigation and how it will be handled. Everyone must know that that rule will be followed meticulously, regardless of how strong the media pushes for the result it thinks appropriate. And the understanding should be that ouster proceedings will be in order only after that process is followed.

Will such a process allow some bad folks to get away with some bad things? Perhaps so. But the flip side is that good people who somebody in the Legislature and the media don’t like won’t have to defend their reputation against potentially baseless allegations made purely for political reasons. Fewer good people will run for office if that becomes routine. Who wants to sign up for that?

If something like this doesn’t happen, then we might find ourselves too often reading all kinds of things about various legislators where the accuser’s objective is more political than ethical.

Though the folks at The Tennessean, as was said this morning, “will enjoy watching our political leaders throw dirt at each other,” that will not serve the people well.

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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The New Frontier for Liberals in Tennessee

The conflict between Tennessee’s increasingly liberal cities and the state Legislature is about to explode. The left’s tactic of running to the courts to get what they want is taking on a new twist, and the Legislature must address it.

What I see happening in Nashville and Memphis in the last couple of weeks seems to me eerily similar to something I noticed a few weeks ago in Arkansas. In 2015, Arkansas passed a law like the Intrastate Commerce Protection Act Tennessee passed in 2011. Arkansas’ law, like Tennessee’s, prohibited local governments from creating new “classifications” of people entitled to special protection under a local version of the state’s non-discrimination ordinance. In other words, civil rights protections, as they applied to private sector businesses, had to be uniform across the state and not vary from city to city.

While the state laws did not target any particular group of people, LGBT organizations chaffed at the law because it foiled their ability to get larger, more liberal metropolitan areas to pass laws in their favor, requiring them to do the harder work of passing the protections they wanted through the state Legislature.

But cities in Arkansas began to pass local ordinances they said could be distinguished from the state law, and therefore not in violation of it. This, of course, forced a conservative organization to sue the city of Fayetteville (one of the cities that passed a local sexual orientation/gender identity ordinance). A state judge upheld the ordinance, allowing the state law to be bypassed. The case is now on appeal to the Arkansas Supreme Court.

Nashville, governed by liberals, is now on track to snub its nose at two state laws, and Memphis is not far behind.

Last January the Legislature passed a law to prevent cities from enacting “inclusionary zoning” ordinances. We don’t need to worry about what inclusionary zoning is or whether it has merit, because the fact is state law prohibits it. But Nashville is poised to pass an inclusionary zoning ordinance anyway. An organization opposed to that ordinance now has to look at suing to stop the ordinance’s enforcement if it passes.

State law criminalizes the possession of a certain amount of marijuana, and county sheriffs and local police departments enforce that law (the state has no law enforcement agency for such crimes). But Nashville has now passed an ordinance that allows their police officers to ignore the state criminal law and issue instead a civil fine. Memphis is looking at passing the same local ordinance, and a couple of Shelby County Commissioners may look at passing it for the county. Again, someone will have to sue to stop these local ordinances.

Essentially, liberals are forcing conservatives to go to the trouble of expensive lawsuits to protect state laws, a way for them to get the state law into the cozy confines of liberal courtrooms without having to sue the state themselves.

I suspect that you will see Nashville and Memphis continue down this track, setting up clashes with state laws they don’t like and forcing those who support the state law to have to go to the expense of suing and having state policy decided by judges.

This is a political game of chicken that state legislators cannot afford to duck. Of course, they will be branded as backwards, against progress, against this-or-that, but the rule of law is too important to allow laws to be brazenly bypassed or ignored.

There is a simple solution. If local governments want to be autonomous, then let them be autonomous with their own money. State law provides a share of state taxes to local governments, and if local governments don’t want to abide by state law, then maybe they can abide just fine without a share of the state’s revenues as well.

Money talks, and if state money walks, then local government might show a bit more respect for the authorities the state constitution has placed over them and by which they were created in the first place.

If legislators don’t do something, then they will be complicit in making their own laws meaningless.

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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