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Obergefell-Related Marriage Lawsuit Advances in Court!

FRANKLIN, Tenn. (June 1, 2017) —Tuesday we received notice that Judge Pemberton denied the various motions made to dismiss the Obergefell-related marriage lawsuit filed in Bradley County by FACT’s Constitutional Government Defense Fund (CGDF).

FACT’s president, David Fowler, who as an attorney is handling the lawsuit on behalf of the CGDF, said the following:

It is very gratifying that the judge recognized the fact that no state court in Tennessee and no federal court have determined the effect of the Supreme Court’s Obergefell decision on Tennessee marriage license law. Sadly, most people have been willing to overlook the legal and constitutional questions left open by Obergefell, making this the only case of its kind in the nation. So we are grateful that the judge believes our clients have the legal right to raise those questions and that he is willing to decide them.

Background to the Litigation

In January 2016, CGDF filed a lawsuit on behalf of a Bradley County, Tenn., minister and County Commissioner. The suit asked the court to determine whether the U.S. Supreme Court’s same-sex marriage decision, Obergefell v. Hodges, had invalidated Tennessee marriage license law or whether the Court, by that decision, had for the first time in history effectively “amended” a state law.

The lawsuit highlights the fact that the Obergefell Court held that “state laws are invalid to the extent they exclude same-sex couples from marriage,” yet states are acting as if their laws are not only still valid, but have been effectively “amended” by the Court’s decision in a way that eliminates the “male and female” language from state statutes, such as is found in Tennessee law.

The U.S. Supreme Court and the 6th Circuit Court of Appeals have previously held that any decision by a federal court as to whether unconstitutional language in a state statute can be eliminated so as to “save” the statute from being completely unconstitutional is a state court issue. It is for that reason that the CGDF believes the Obergefell Court did not address and left open the question of whether state marriage license laws had any continuing validity.

The Family Action Council of Tennessee (FACT), which David Fowler heads, was formed in 2006 by a group of citizens concerned about the growing negative impact of public policies on marriage, families, life, and religious liberty. FACT’s mission is to equip Tennesseans and their elected officials to effectively promote and defend a culture that values God’s design for the family, for the sake of the common good. For more information, visit

Media Contact: Laura Bagby, Director of Communications | Office Phone: 615-261-1338 | email:

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Ben and Jerry’s Displays Solidarity for Same-Sex ‘Marriage’

Saying that “love comes in all flavors,” Ben & Jerry’s has banned orders of two scoops of the same flavor ice cream in Australia until it legalizes same-sex “marriage.”

Dr. Michael Brown thinks the company’s logic is lacking. “Will they ban three-scoop cones of any flavor until Australia legalizes throuples? . . . and will the company ban one scoop of one flavor plus two scoops of another flavor until Australia legalizes polygamy?”

Dr. Brown posits that Ben & Jerry’s scoop ban actually points to the uniqueness of biblical marriage: Two scoops of the same flavor, representing same-sex “marriage,” just means more of the same, while two scoops of a different flavor, representing men and women in a God-ordained marriage, brings something new and unique.

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Farmer Denied Participation in Farmer’s Market Due to Religious Beliefs

Alliance Defending Freedom (ADF) filed a lawsuit this week on behalf of Michigan organic farmer Steve Tennes of Country Mill Farms, who was denied participation in East Lansing’s farmer’s market, even though he had consistently provided exceptional service as a participant in the farmer’s market for the past six years. His offense? He mentioned his religious beliefs about marriage on his farm’s Facebook page. East Lansing city officials saw the post and then began developing a new policy aimed at blocking Tennes from participation.

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A Good Tennessee Marriage Court Ruling Provides Ray of Hope

I got an email from a lawyer friend this week in which he said, “I have become so jaded that I expect nothing good out of courts.” I didn’t realize how much I had begun to share his sentiment until I received a ruling from a Tennessee judge this week.

The ruling to which I’m referring denied a motion to dismiss a lawsuit I filed in January of last year. The lawsuit was filed by me through an arm of the Family Action Council of Tennessee, the Constitutional Government Defense Fund. It was filed on behalf of a Bradley County minister and County Commissioner who were willing to challenge the notion that the U.S. Supreme Court’s same-sex “marriage” decision in 2015, Obergefell v. Hodges, changed Tennessee’s marriage license law.

That the motion was denied means that the lawsuit can go forward!

The judge’s decision does not mean that our clients “win,” nor does it mean that the state can ignore the Obergefell decision. But it does mean that the judge believes this minister and County Commissioner have a right to have a state court determine the effect of the Obergefell decision on our marriage license law. Whether that law remains valid after Obergefell we’ll soon find out.

I can’t tell you how gratifying the judge’s decision was in the wake of the mixture of responses I got to the lawsuit from my fellow lawyers. Most of these lawyers, to be honest, just scoffed and never even heard me out. They would say some inane thing like, “You can’t nullify a Supreme Court ruling,” when that’s not what the lawsuit seeks to do. Among those who didn’t just scoff but listened to my legal theory, many said I was correct, and then added, “But the courts aren’t going to follow the law.”

I was beginning to think they might be right when a supposedly conservative judge dismissed a similar lawsuit we’d filed in Williamson County (now being appealed), but I continued to try to convince myself that there were still judges who would follow the law, regardless of whether they liked the result. I hoped and prayed that the judge in Bradley County might be one of those.

But when I got a letter from the judge on Tuesday advising the lawyers on the Bradley County case that he would be filing an opinion denying the motion to dismiss, I realized my self-talk had masked the fact that I, too, had become jaded. I found myself reading the letter multiple times to see if I was reading it correctly. I asked another lawyer in my office if the letter was saying what I thought it said. I even called the judge’s secretary to make sure I was reading it correctly.

I realized then that I probably had lost more faith in our judicial system than I had wanted to admit. But the judge’s ruling restored a bit of that faith.

The judge acknowledged that no court had ever decided what the effect of the Obergefell ruling was on our marriage license law, and that ministers and citizens had a right to know what the effect of that ruling was.

Our law says that marriage licenses can only be issued to male and female applicants, and Obergefell expressly said such laws are “invalid.” My clients are simply asking on what basis, then, are our county clerks issuing any marriage licenses, let alone licenses to same-sex couples.

I don’t know how the judge will answer that underlying legal issue. He may rule in a way that I believe is consistent with long-standing judicial precedent, or he may find a way around those precedents.

However, at least for today, we know there is one judge in Tennessee who is willing to follow the law, even if it puts him in the position of having to make a tough decision on the merits that one side or the other of the same-sex “marriage” issue isn’t going to like.

It’s nice to know I have a reason for not being quite so jaded for yet another day.

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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Nature Isn’t Natural Anymore

A new law stating that words used in Tennessee’s statutes should be given their “natural and ordinary meaning” provoked a firestorm of controversy by the proponents of same-sex marriage. It appears that the word “natural” in the legislation is the problem. But if so, then we really have a problem.

After the bill passed, the head of the state organization that led the opposition to the bill told a reporter that the word “natural” in the new law concerned him. Specifically, he said, “We know the way ‘natural’ is typically used in respect to our relationships. Our families aren’t natural.”

That is a very telling statement. According to Webster’s Dictionary, “natural” means “being in accordance with or determined by nature.” Thus, what we have is an acknowledgment (probably unintended) that people don’t “typically” think of a sexual relationship between two people of the same sex as being “natural.” In other words, a same-sex relationship that is sexual (as distinguished from social) is not “natural” within the “natural and ordinary” meaning of the word “natural.”

But it is also an acknowledgment that the kind of family that same-sex married couples have is not natural in the same way that families of a married man and woman are. Whether a man and a woman actually have children or are physically capable of having children is not the issue in this context; it’s that having children is “natural” to that type of relationship or, in Webster’s words, “in accordance with nature.” Nature will never produce a family through the sexual union of two people of the same sex.

I don’t say this to demean anyone because, after all, I’m not the one who said the relationships and families at issue were not “natural.” I’m just calling attention to what was said. But my point is simply this: It is hard to forever suppress nature. It bubbles back up in our consciousness and comes out in conversation, sometimes when we least expect it. In the words of professor J. Budziszewski, there are some things we just cannot not know.

The only way for what is not natural to become natural is to give the word “natural” an unnatural meaning. And that is where we are headed as a society. We are being asked to give up believing that there are any things that are “natural” to our humanity and pretend that things are only what the law says they are.

In the context of the LGBT agenda, that means words like “marriage,” “fatherhood,” “motherhood,” and “family” will now only mean what we say they mean. They are mere words without meaning until we assign them meaning by a law; there is nothing naturally true about any of them.

However, the problem is that giving a word a meaning contrary to its natural meaning requires us to give a new meaning to all the words associated with that word. That necessity is currently reflected in our struggle to figure out what to do with marriage-related words in other laws now that our law has abandoned the natural meaning of marriage.

And herein lies our real problem—constructing a universe of meaning to replace the universe of meaning we “naturally” had. That is a God-sized task, and it begins with giving the word “God” a new meaning, too; it now simply means “us.” To me, that just doesn’t seem natural.

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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