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DOJ Takes Measure to Protect Privacy in Transgender Bathroom Mandate Case

The Department of Justice, under new Attorney General Jeff Sessions, has withdrawn a request from the Obama DOJ that would have blocked a federal court injunction against enforcement of Obama’s “guidance letter” purporting to mandate that bathrooms in public schools be designated by feelings rather than biology.

According to Gary McCaleb, senior counsel with the legal group Alliance Defending Freedom, this is “good news for the privacy, safety, and dignity of young students across America.” The injunction now prohibits the ACLU and others from threatening lawsuits against schools based on the “guidance letter.”

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Will the Trump Revolution Bring Real Change?

Several news headlines over the past week said the populist revolution against the Democratic and Republican establishment that swept Donald Trump into the Oval Office was spreading among European countries. The vote in Italy this week was demonstrative. But will this revolution lead to real change or simply a counter-revolution?

Last week, I noted the swings between Democrat and Republican control of Congress and between liberal and moderate Presidents (Clinton to Bush to Obama) and further noted that the swings away from more liberal control had not arrested the downward trajectory in our social mores and fiscal irresponsibility:

If we don’t figure out why this phenomenon exists, then I predict that in another four to six years we will see another swing with Congress changing hands and another Obama-Clinton type, or perhaps worse, a Bernie Sanders, going into the Oval Office when we find ourselves disillusioned with Mr. Trump and the change we were looking for from him didn’t come.

Why have none of the political changes in the more conservative direction brought about any real change?

I recently found an intriguing answer to that question in a book written in 1860 by Dutch politician and historian Guillaume Groen van Prinsterer, Christian Political Action in an Age of Revolution. Prinsterer analyzed the political swings in France from the tyranny of absolute monarchy and the rule of one, Louis XVI, to the populist majority, back to the absolute rule of an individual, Napoleon. His purpose was to discover what worldview might lie behind the political turbulence and determine whether that worldview was infecting his own country.

His conclusion was that these swings were the product of a “revolutionary condition” that could only produce “perpetual revolution”:

The revolutions of 1789, 1793, and 1830 were only different phases of a single phenomenon, different acts of the same drama, ‘governmental revolutions with the Revolution.’ Though we shuddered at the memory of the Terror and the Jacobin propaganda, and later at the violence and conquests of the Empire, we believed—on the basis of wise concessions of a moderate liberalism—that we could prevent the return of these terrible calamities. We took for excess what were in fact direct consequences.

To corroborate his assessment that revolution would prove to be perpetual, he noted that even Napoleon had said, “I am the bookmark that marks the page where the Revolution was halted; but when I am gone, it will turn over the page and resume its march.”

Will the same be said of Trump’s tenure? Will his presidency prove to be merely a “bookmark” that only halts, for a time, our national journey toward social and fiscal bankruptcy? After all, in retrospect, the Republican Revolution in 1994 and the Bush presidency that followed were, at best, only “bookmarks” in our slide.

The answer to this question would seem to be “yes” if the “revolutionary condition” that led to the swings in France pertains here. And what was that condition according to van Prinsterer?

The condition was an underlying principle, and here’s how he described it:

The Revolution’s principle is the idolatrous worship of humanity; man recognizes no one but himself as sovereign, nothing but his reason as light, nothing but his will as the rule; he worships man and dethrones God.

This, too, is the prevailing principle in America. And until that principle changes, perhaps we should not expect any real change in America or in Europe. Partisan powers that at root embrace the same principle cannot really arrest the direction in which we’re headed; our momentum cannot therefore be forward, but only back and forth. As van Prinsterer said, “the only antidote for systematic unbelief is faith,” faith in the “God of nature, history, and the Gospel.”

If van Prinsterer is correct, and I believe he is, then the question isn’t whether Mr. Trump will bring about the change we need, because he can’t, but whether the Church will be ready to speak the truth that both the individual and the majority, the ruler and the ruled, the employer and the employee are under the sovereign authority of the Triune God.

As William Penn said, “Men must be governed by God or they will be ruled by tyrants,” be they the elite or the populist majority. Only the Truth will really set us free, and bring about real change.

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 Supreme Court Is the Tip of the Iceberg This November

Certainly, the appointments that will take place within the U.S. Supreme Court over the next four to eight years are important, but we can’t focus only on “the tip of the iceberg” when it comes to the federal judiciary and the increasing control it exercises over our ability to govern ourselves.

Appreciating the bigger picture begins with understanding that the U.S. Supreme Court will hear only 70 to 80 cases a year. No doubt, those will be major cases with a potential for a huge impact, but the bulk of the decisions that interpret the U.S. Constitution and construe our laws are made by the lower federal courts—the federal district court judges and federal judges on the Circuit Courts of Appeal.

What has taken place at that level over the years shows that who is President can be just as important with respect to these lower courts as it can be with respect to the Supreme Court. President George W. Bush appointed 330 federal judges, and Bill Clinton appointed 379. President Obama has successfully seated a total of 329 federal judges during his two terms. And remember that all of these appointments are lifetime appointments as well.

Have the appointments by President Obama made a difference? Sure have.

When President Obama took office, only three Circuit Courts of Appeal had more Democrat-appointed judges than Republican-appointed judges when President Obama took office. Now, nine of the thirteen circuits do. That’s why all the federal Courts of Appeal that ruled on same-sex “marriage” ruled in favor of it, except for one, the Sixth Circuit.

And why do you think Tennessee filed its lawsuit over President Obama’s gender identity bathroom “edict” in a Texas federal court rather than the federal district court down the street from the Capitol here in Nashville? It’s because the federal judges here are all so liberal.

The good news is that over the next eight years, some of these lower court federal judges will retire and the President during that period may have a chance to shift some of those courtrooms back to the right.

But if Hillary has eight years to continue the trend, then there will be no federal courts a conservative can look to for a ray of hope. And the road back may be a long one, as the precedents decided by those judges will linger long after they are gone from the bench.

So, if you’re thinking about who will be appointing the Judges that you’ll most likely see in the news in the years to come, lower your sights a bit—think, too, of the judges below the surface who will be controlling the bulk of the cases that are filed. Those judges could just as easily sink the ship of state as those you see.

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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What the Texas-Tennessee Bathroom Decision Means

This week a federal district court judge ruled in the “bathroom” lawsuit filed by Texas and Tennessee and several other states. The lawsuit involved the legal effect of the “guidance letter” sent by the Obama administration telling public schools and colleges to allow bathrooms and locker rooms to be used based on a person’s psychological self-identification of their sex. He ruled that the letter had no force of law. What does the decision mean relative to Tennessee?

What the Decision Means

The decision means, for now, that Tennessee does not have to have a psychologically based, self-defining sex policy when it comes to bathrooms and locker rooms. It is still okay to use biology to define who uses which restroom or locker room.

The good news is that the court said the word “sex” in Title IX of the federal law is not ambiguous and that if the Obama administration wants to re-define the word, it needs to follow the rules for changing the law, not send letters. This was a win for the rule of law.

However, there are also a couple of things the decision does not mean that you need to understand.

What the Decision Does Not Mean, Part I

First, it does not mean that the issue is over and decided. The Obama administration will surely appeal, though a Trump administration may have the head of its Department of Justice drop the appeal. However, even if that happens, there is still the case out of Virginia that liberal lawyers control and that the U.S. Supreme Court has been asked to review. We don’t know yet if the Court will hear it. To put it in football season parlance, a win is a win though the “season” is not over.

What the Decision Does Not Mean, Part II

Second, the decision doesn’t mean the safety and privacy of your child (or grandchild) is now protected. One organization in another state said, “When parents send their children to school today, they can focus on education and rest assured that their privacy and safety is protected.”

To make sure I understood that statement correctly, I asked, “Does your state have a law that prohibits public schools from having a local policy that allows students to self-identify and choose the bathroom or locker room they want to use?” The answer was “no.”

That means the school a Texas child attends could have a policy that does not protect privacy and safety by using the objective criteria of biological sex for bathrooms and locker rooms.
And the same is true in Tennessee. It didn’t have to be true, but it is true.

Why Your Child Is Not Protected

The reason the privacy and safety of your child or grandchild is not protected is because the bill this spring that would have prevented a local school from having a psychologically based, self-defining sex policy for bathroom and locker room use was killed by the bill’s House sponsor.

Some will say that the victory in court means that not passing that bill was the right thing to do. I disagree.
Those who say this decision shows the wisdom of killing the bill probably mean that the ACLU no longer has a legal tool—the guidance letter—to use to threaten our schools with lawsuits if they don’t adopt a psychologically based, self-defining sex policy. I agree, but that misses the point in two regards.

First, if it undermines the ACLU’s ability to argue that a biologically-based sex policy for bathrooms and locker rooms is wrong, then it also undermines the lawsuit some legislators worried about Tennessee getting hit with if they passed the bill. The decision is not only bad for the ACLU in a lawsuit in Texas, but it is also bad for them if they sued Tennessee!

Second, and more importantly,Tennessee schools can still adopt a psychological, self-defining sex policy for use of bathrooms and at least some have.

If you think each school system should have the authority to redefine sex for the children in their school system—if you think the meaning of the word “sex” should vary from place to place and is not a universal concept—then killing the bill (or voting against it as some did) was the right thing.

However, I happen to think, as do a large number of Tennesseans, that the word “sex” is rooted in biology, sex is important, and redefining sex is not one of the things local schools should have the authority to do.
Such a limitation on local authority is not a strange idea. There are all kinds of state rules that limit the authority of local school systems. Shoot, we even limit whom they can hire and fire!

So don’t be fooled by those who say the Texas decision protects our children from bad bathroom and locker room policies in our local schools or by those who say the decision means not passing the law in Tennessee was a good thing.

If you don’t want a 13-year-old girl to find herself with a boy in her bathroom or locker room, it still would have been good if the “bathroom bill” had passed.

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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Donald Trump 2015 by Michael Vadon on Flickr

Can Trump Protect Religious Liberty?

Is religious liberty really under attack in the United States? If so, will Donald Trump, if he’s elected, really be able to protect it from further attack?

Many of my Christian friends probably wonder why I would even pose the first question, because, to them, the answer is an obvious, “Yes.” As to the second question, some of my Christian friends would also think the answer is obvious.

I’m not so sure the answer to either question is so obvious if we are really honest with ourselves about the situation and the reason behind the “attacks.” But being honest with ourselves is the first step toward restoring the religious liberty historic Christianity once knew in this country.

The word “historic” is key to answering the first question, because the answer depends on what strain of Christianity one is talking about. The American Christianity of more recent vintage that is rooted in only a spiritualized internal experience and focused mostly on getting to Heaven is not really under attack. It’s no threat to anyone. A more robust strain of the same that focuses on personal piety in one’s conduct is not under too much attack, either. Yes, such Christians are considered odd and may be ostracized in some circles. But there is still a large, whatever-floats-your-boat sentiment in America; so long as you “do your thing” in a manner that doesn’t affect others, your religious viewpoint is no threat.

However, if you are part of the historic strain of Christianity that believes there are transcendent, creational laws or norms that apply to all human behavior, including the institutions that humans create, such as civil governments, economic systems, and educational systems, then your Christianity is under attack. That Christianity is not okay with the American majority, maybe even a very good number of those who go to church on Sunday.

But it’s more than just “not okay.” It must be snuffed out.

That sounds dramatic, but it’s true. It’s hard for Christians to admit, but it’s not hard to understand. No god likes to have another god usurp their rule and authority, and the Christian God who imposes “laws” on His creation is an offense to the man-is-the-measure-of-all things religion. Man has always wanted to be his own god, and the culmination of that “religious” view’s dominating power in America was demonstrated when the Supreme Court said it could redefine marriage.

We must understand that there can be no absolute religious liberty when the question of religious liberty is framed this way: Has a creator God imposed a moral order on man, or is man autonomous? There can be toleration of religion and religious beliefs, which is what we have now, but toleration necessarily means someone or some thing decides what will be tolerated. Those in charge of deciding what religion(s) will be tolerated necessarily “establish” that religion or those religions.

That being said, let’s return to the second question, can Trump protect religious liberty? In the sense in which I’ve framed the issue, the short answer is “No.” He can perhaps slow down the attacks for a season, and he can maybe help prevent certain selected attacks, like Tennessee’s Legislature has done with professional counselors and student religious groups on public college campuses. But he can’t stop the attacks; they are inherent to the worldview underlying the controlling powers in our civil government, school systems, and culture.

Picture the whack-a-mole at the fair and that’s how I envision Trump on this matter—he might be able to whack a historic Christianity-attacking mole here and there. Of course, Hillary, like President Obama, is one of the moles and will let the moles run free.

Those who believe their Christian views are under attack must first realize the depth and breadth of the problem. It is beyond fixing by any one President. In fact, there’s no quick fix.

It’s going to take a cultural revolution as comprehensive as the revolution that displaced what we had and that’s brought us to where we are. The sooner we see that, the sooner we’ll move past looking for political saviors1, settle in and get started on the task ahead. Helping your friends understand the nature of the problem and then equipping yourself at things like our Stand for Truth Seminar (Johnson City, September 10th) is one way to get started. It’s much larger than the next Presidential election.


  1. I do not intend to suggest that voting or politics and the product of politics—laws and public policy—are not important and part of the solution, but it is only a part.

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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