gambling cards and two champagne glasses with "groom" etched on them

Monday’s U.S. Supreme Court Decision Was a Federalism Doozy

This week the U.S. Supreme Court released an important Tenth Amendment decision, Murphy v. NCAA, that may have clear implications for the state’s lawsuit against the United States over the Refugee Act. It also might just overthrow the Court’s three-year-old same-sex “marriage” decision, Obergefell v. Hodges.

The Murphy case involved a provision in a federal statute passed years ago prohibiting states from “authorizing” any form of sports gambling. It’s important to note that this provision did not make sports betting a federal crime. Had it done so, the federal statute would have been directed against and regulated the activities of persons (individuals and individual entities), who can be subjected to federal laws.

But this provision was directed at limiting or controlling the powers of the state legislature to legalize or prohibit sports gambling. It was because the provision purported to bind a state’s legislature, not persons, that it raised a Tenth Amendment question.

Here is what six of the nine justices said in Murphy about why the provision was unconstitutional:

That provision unequivocally dictates what a state legislature may and may not do. . . . The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. [The federal law] “regulate[s] state governments’ regulation” of their citizens. The Constitution gives Congress no such power.

Here is the point: Congress can’t tell a state what laws it must have or what state laws it cannot repeal.

Application to Refugee Resettlement Lawsuit

In March 2017, the Tennessee Legislature sued the United States arguing that Congress’ regulation of refugees through private vendors under the Refugee Act placed a de facto requirement on the state that it affirmatively enact a state law—the state budget—that covers certain costs associated with that federal program.

The lawsuit isn’t about whether one likes or dislikes the federal program or likes or dislikes refugees resettling here. It is about the Constitution and whether the federal government has the power to make a state enact a law to pay for a federal program in which it does not participate.

Murphy should bolster the Legislature’s argument that where the federal government chooses to regulate, it must do so, and it can’t require the state to participate in any way in the federal program’s administration or funding.

Application to Obergefell

Given that the U.S. Supreme Court is a branch of the federal government, its powers, like Congress’, are limited. In 2015, the Court held that marriage was a fundamental right under the U.S. Constitution and states could not have a statute that limited the issuance of licenses to opposite-sex couples.

But why do states have to administer this federal right by enacting statutes to effectuate this federal right and by using Tennessee tax dollars to pay for the costs associated with administering those statutes?

Since Obergefell, it seems that state officials and most attorneys have assumed that the state must have a marriage licensing statute and that that statute must authorize the issuance of marriage licenses to any two people, regardless of their sex.

But if a branch of the federal government expressly given legislative functions under the U.S. Constitution, Congress, cannot forbid states from repealing a law or requiring them to enact a particular law, then how can the Supreme Court, which clearly has no policy or legislative powers, do that when it comes to effectuating the federal right to marry?

As in Murphy, the federal “law” in Obergefell appears to “regulate[s] state governments’ regulation” of their citizens!

This federalism issue was raised by Michigan’s attorney general during the oral arguments in Obergefell and all the justices missed the point—There is nothing, he said, in the U.S. Constitution that requires a state to license a marriage and no branch of the federal government can require them to do so.1

The Supremacy Clause Doesn’t ‘Save’ Obergefell

Thankfully, the Court flushed Congress out of the refuge to which attorneys unwilling to discuss the merits of Obergefell have retreated: the Supremacy Clause. Murphy rebuffed the argument that the Supremacy Clause provided Congress the power to bind the state’s legislature.

The Supremacy Clause, the Court said, only provides a “rule of decision” for the Court to follow when an otherwise valid state law conflicts with an otherwise valid exercise of federal power—the federal exercise of power trumps the state exercise of power. It is not a source of power by which an otherwise invalid exercise of federal power can be justified.

One More Lawsuit Is Needed

Perhaps the Legislature should file one more lawsuit. This time it should seek to enjoin the Department of Health from issuing marriage licenses to two people of the same sex, contrary to express language in our marriage licensing statute.

The argument is simple: Its legislative powers have been encroached on by the U.S. Supreme Court’s apparent requirement that it have a statute requiring state officials to administer a form of marriage that the Constitution of its state expressly prohibits it from recognizing, and it is the constitutional responsibility of either the Court or Congress to administer this new federal right. Neither can tell the state how to affirmatively regulate the conduct of their residents.

Of course, such an argument might just cause the Court to realize it made a mistake in Obergefell, in which case the Court could just chalk it up to “Murphy’s Law.”


  1. The actual statement by the Michigan attorney general was, “If the State today decided to have no marriage, as some States have proposed, that wouldn’t violate a fundamental right. . . . [T]he Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by—by forcing them to recognize and give benefits to anyone.”

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.

Invite David Fowler to speak at your ev

A father and mother hold the tiny hands of their infant son

How Long Before Parents Have to Be Licensed by the State?

The last two weeks we’ve talked about hard decisions Christians are going to have to make. If you are a young Christian couple or you have a child or grandchild who someday hopes to be a parent, then you need to read this. In the coming years, Christian couples who teach their child the “wrong” thing could have their parent’s license revoked. Never happen you say? Keep reading. The Constitutional groundwork has already been laid.

Last week, a judge in Ohio ruled in a parental rights case. The Washington Times headline about the case tells you all you need to know: “Religious Parents Lose Custody of Transgender Teen for Refusing Hormone Treatment.”1

That headline shouldn’t really shock anyone, given that the following was the very first sentence in the Supreme Court’s decision on same-sex “marriage,” Obergefell v. Hodges: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

As I’ve said for the past two weeks, the Christian understanding of humanity—as being male and female in the image of God and there being a real and meaningful difference between the two—was decisively rejected in Obergefell in the context of marriage.

That necessarily means that Obergefell’s worldview must now govern all other areas of law that flow from marriage, which necessarily includes parental rights.

What the Ohio case helps us understand is that Obergefell changed the rules upon which future debates about parental rights can be made. Parents can no longer argue, as they did in the Ohio case, that certain rights arise naturally out of biological kinship bonds formed through procreation.

Here’s why. Those kinds of bonds do not exist for both “parents” in the same-sex model for marriage that has now replaced the male-female model of marriage.

Furthermore, arguments implying that biology or biological kinship matter cannot be allowed because they would undermine same-sex “marriage.” If you don’t believe me, then you must not have heard about this other case from last week.

In this other case, a biological father tried to obtain custody of his child who was in state custody. His request was denied, but not because he was unfit. The problem was that he had only been the sperm donor who had helped the now derelict adults in a same-sex “marriage” have the child.

The Court said letting the biological father rescue his child would “expos[e] children born into same-gender marriages to instability for no justifiable reason other than to provide a father-figure for children who already have two parents.”2

In other words, any “two parents” will do and two is enough. A father doesn’t “add” anything to a child’s life, a thought I hope the men out there let sink in until Father’s Day.

Obergefell means that parenthood can no longer be grounded in biological, procreative realities.

That is why Yale law professor Douglas NeJaime wrote in the Harvard Law Review3 that the biological model of parentage must be jettisoned and a new model substituted for it based on the intention of a person to parent and the carrying out of functions related to parenting. But this converts parentage to only a legal status bestowed by civil government, not a relationship arising out of procreation between a man and a woman.

Moreover, in time, you can bet this power will be abused by the relativists in control, and they will conclude that parental status should only be bestowed on those whom they think worthy of it, namely, those whose style of parenting benefits the state. After all, the good economy we demand will justify it.

From there, it will be a short leap, logically, to the proposition that a state can and should license persons to be parents.

When that happens, don’t be surprised if Christian parents have to choose between losing their license or leaving out the Christian stuff the state thinks is harmful to the child, meaning harmful to the state. They shouldn’t think that biological kinship ties will protect them from the same type of disciplinary actions that other state licensees face if their Christian convictions become a problem for the smooth functioning of a well-ordered state.

Again, if you don’t want to believe me, just ask the “religious parents” in Ohio how their reliance on biological kinship arguments turned out last week. In the words of Obergefell, the state thought the right of their minor daughter to “define and express her identity” as a son trumped their rights as parents.

Licensing parents may seem far fetched, but fifteen years ago, people said the same thing about licensing marriages between two people of the same sex.


  3. “Marriage Equality and the New Parenthood,” Harvard Law Review, Vol. 129, No. 5, March 2016

Commentaries in the Marriage Series:

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.

Invite David Fowler to speak at your event

engaged couples

Should Christian Couples Get Legally Married?

I know that question sounds bizarre, but after what I wrote last week about whether Christian ministers should continue being agents of the state for legalizing marriages that state law defines contrary to God’s law, a couple of thoughtful people asked me how the line of thinking used there applied to Christian couples wanting to marry. My answer may just change the way you think of marriage.

By way of background, last week I said the Supreme Court’s same-sex decision in Obergefell v. Hodges did not expand the list of people who could enter into the historic institution of marriage and have that kind of marriage recognized legally. Rather, the Court constitutionally jettisoned the male-female kind of marriage for legal purposes and replaced it with one in which the sex of the parties is no longer an element of marriage.

The Questions the Law Raises

Applying these legal facts to the Christian couple who desires today to wed, this is the question the state now effectively asks them: Are you willing to agree to the state’s new definition of marriage and sign our forms that reflect that new definition of marriage in order to have a legal marriage?

Given that question, the couple must then ask themselves this question: Do they want a marriage the law will recognize badly enough that they will sign the forms?

Is It Just ‘Paperwork’?

Some may say that it’s just a matter of paperwork, and it’s what’s in their hearts that matters. But, as noted below, that argument can backfire.

Hard Choices in Scripture

You may say, “David, what choice do today’s Christian couples have?” Before I answer, let’s put this, and all the other hard choices Christians are going to have to start making because of Obergefell, into a scriptural context.

In John Chapter 6, we’re told that a number of people stopped following Jesus because some of His sayings were “hard.” Jesus then asked His disciples, “Will you also go away?” Peter responded, “To whom shall we go? Thou hast the words of eternal life” (John 6:68 KJV).

I picture Peter as being conflicted. Perhaps Peter didn’t like what Jesus had to say any more than the other folks, but he realized he did have a choice whether he liked it or not: Reject Jesus’ words or reject eternal life.

By sharing that story, I’m not saying one’s eternal life depends on how one answers the question I’ve posed. I, too, often cringe over the fact that the Lordship Jesus claims over His followers is not dependent on whether the choices He asks us to make are hard or easy.

What Are Christian Couples’ Choices?

So what choice do Christian couples have in this instance? The answer lies in the fact that there is nothing in the law that prohibits a man and woman from going before a minister and other witnesses and making public their covenant declaration of marriage.

In the eyes of God, is not their declaration before their minister and friends a binding marriage? Would not God hold them to their covenant vows, whether they had a certificate from the state or not?

You bet He does, and you bet He would. Just read what God says about marriage and divorce back before civil government started licensing marriages.

The point is religious covenant marriage ceremonies are not illegal. It’s just that the law won’t recognize that kind of marriage as having any legal effect.

This is where the it’s-only-a-piece-of-paper argument comes back to bite us. If the paperwork doesn’t “make” us married, but only what we do in God’s sight (and before witnesses), then why do Christian couples get a state license to marry?

Why Do Christian Couples Get ‘Legally’ Married?

What I’ve begun to believe is that there probably isn’t a real reason, other than our general call as Christians to obey the law. But obeying man’s law when it conflicts with God’s law is precisely the issue in this instance.

One reason we enter into a marriage that man’s law will recognize is that it does bring along a host of other laws and benefits.

It was those laws and benefits that were at the heart of the lawsuits by same-sex couples in Obergefell. They complained that those benefits were real and meaningful and being denied them because they could not marry. The Court felt obliged to them, but now the “benefits” shoe is on the other foot.

The Really Hard Question

Should Christian couples be willing to forego those state-afforded benefits in order to avoid participating in an unbiblical marriage scheme created by the state? Not an easy choice to make. But if those couples think that question is tough, wait until they consider what kinds of questions they may face someday when they become parents. That topic is for next week.

Commentaries in the Marriage Series:

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.

Invite David Fowler to speak at your event

shape of United States filled in with American flag on striped background with words national news

No Same-Sex Benefits in Texas

In what could lead to a significant decision, the U.S. Supreme Court ruled on Monday that it would not hear an appeal from the city of Houston of a Texas Supreme Court decision that effectively blocked the city from offering benefits to the same-sex spouse of municipal employees. The case began when then-Houston Mayor Annise Parker authorized taxpayer-subsidized benefits for the same-sex spouse of a municipal employee in violation of Texas law at the time regarding same-sex “marriages.” However, by the time the case was heard by the Texas Court of Appeals, the U.S. Supreme Court, in the Obergefell case, held that states that license marriages must also issue licenses to same-sex couples. The Texas appeals court ruled that providing the employee benefits was required by Obergefell. The Texas Supreme Court stated that Obergefell did not automatically require a state to confer on same-sex couples the same employee benefits it provided to opposite-sex couples. The Texas Supreme Court then sent the case back to the trial court to decide how Obergefell applies to benefits. Though the U.S. Supreme Court refused to hear an appeal from the Texas Supreme Court, expect the case to return there in a couple of years.

News Sources:

NOTE: FACT provides links to external websites for educational purposes only. The inclusion of any links to other websites does not necessarily constitute an endorsement.

Get News Stories In Your Inbox Every Week

a tortoise and a hare

The Lawyer and the Layman: A Modern-Day ‘Tortoise and the Hare’ Tale

I couldn’t help thinking about Aesop’s The Tortoise and the Hare as I recently sat through a deposition in connection with a contest over who gets to make laws under our Constitution. It was fun to listen in on the conversation as the layman schooled the unwitting lawyer. Keep reading and you can “listen in,” too.

The contest is between the powers of the states and, in particular, the power of their legislative bodies to make law versus the powers of the United States Supreme Court. It is being played out in a lawsuit that our organization’s Constitutional Government Defense Fund filed in February 2016.

The “race” got started in earnest during the recent deposition of a county commissioner, one of the two people who filed a lawsuit challenging the Supreme Court’s authority to require our county clerks to issue marriage licenses to same-sex couples.

If you think the Supreme Court in Obergefell v. Hodges, decided in June 2015, authorized Tennessee’s county clerks to issue marriage licenses to same-sex couples, as do most law school graduates, the “hares” in this story, then you need to keep reading. You might learn something from the “tortoise” in this story, the “lowly” septuagenarian county commissioner whose formal education didn’t extend beyond high school.

To appreciate the exchange between the lawyer-hare and the county commissioner-tortoise, you need to know that the Obergefell Court articulated two holdings.

The holding the lawyers focus on is the one that said same-sex couples have a right to marry under the marriage licensing statutes of the states.

But the holding the lawyers, in their fawning servility to the Court, seem to overlook is Obergefell’s holding that licensing statutes are “invalid” if they only authorize the issuance of marriage licenses to opposite-sex couples. And Tennessee’s marriage licensing statutes do just that, along with the statutes in about 40 other states.

Now, here are actual key exchanges in the deposition, condensed for the sake of space:

Lawyer: Do you agree that you are bound by the decisions of the United States Supreme Court, even though we may disagree with them vehemently or not?

Commissioner: Well, I do to a certain point.

Lawyer: When do you think we should do something different from what the United States Supreme Court says we should do?

Commissioner: Well, first of all, the Supreme Court didn’t make the law; is that correct? They reviewed it.

Lawyer: Okay. And if you don’t obey the law, then have you violated your oath of office?

Commissioner: You have, but like I said, they don’t make law. They review it. . . . And our legislators make our laws for us.

Lawyer: And we follow those even if the Supreme Court—

Commissioner: We should follow the laws that our legislators make. And I don’t know of any law that the legislators have made except the fact that they’re working on this situation.

Lawyer: Have you tried to get them [legislators] to say we want you to issue—even though the Supreme Court has already said it, we want you to say that the clerk should issue marriage licenses to homosexuals.

Commissioner: We want the legislators to say you can or you can’t.

Lawyer: So we don’t have to rely on the Supreme Court already saying that?

Commissioner: Yeah. Right. We want the legislators. They’re the lawmakers. And we want—I want them to say if you can or you can’t.

What was the commissioner saying that the lawyer didn’t seem to understand? Simple: “You can’t get a license, Supreme Court, if you hold the license law is invalid. And only legislators can say what the new law is.”

And therein lies the power struggle. The Supreme Court can declare rights all day long, but until the Legislature enacts a new statute in place of the one the Supreme Court invalidated, our clerks are acting without legal authorization.

Obergefell did not and could not authorize our county clerks to do anything, because under the Tennessee Constitution, Article VII, Section 1, only the Legislature can “prescribe” a county clerk’s duties. No court can make nor has any court ever made a legislative body enact any particular law. It doesn’t have that power.

If you ask me, this county commissioner knows more about the Constitution, the law, and the separation of powers than most lawyers with their three years of specialized legal training.

If hares hadn’t put other hares in charge of deciding who wins this contest, I’d sure put my money on the tortoise.

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.

Invite David Fowler to speak at your event