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NC Bill Challenges Same-Sex ‘Marriage’

While it’s unlikely to become law, some North Carolina legislators are ready to take on the U.S. Supreme Court when it comes to marriage. On the last day for filing, a handful of representatives filed House Bill 780, the Uphold Historical Marriage Act. It states that same-sex “marriages” are invalid in the Tar Heel State and asserts the U.S. Supreme Court overstepped constitutional bounds. They declare Obergefell v. Hodges null and void and uphold and enforce Section 6 of Article XIV of the North Carolina Constitution.

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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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What Newspapers Didn’t Tell You

Thomas Jefferson once said, “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” After being on the inside of state politics for 23 years, I increasingly tend to agree with him. A story in The Tennessean this week is a case in point.

The story related to action taken Wednesday by the House Civil Justice Subcommittee on House Bill 892, dubbed the Tennessee Natural Marriage Defense Act. Thankfully, no other newspaper picked up the story because it so missed the whole point of what took place that those who didn’t read it are better off than those who did.

The heart of the debate centered on an amendment that rewrote the original bill. If you read the article, you would have no idea what the amendment was about.

The amendment is primarily directed at two things: directing state and local officials to obey the marriage license law that requires applicants to be a male and female until a final court order tells them otherwise, and making sure that the state protects them in court if they do.

The story never told you why the amendment was offered. It was because no court has ever ruled on how the U.S. Supreme Court’s same-sex “marriage” decision (Obergefell v. Hodges) applies to Tennessee’s male-female marriage license law.

Many would say, “So? The Court was very clear; laws restricting licenses only to males and females are invalid.” That’s true, but that’s also the point—no one, including our state attorney general, has thought to ask, “If that opinion renders our law invalid, then what is the law?”

This is where an opinion from the attorney general’s office comes in. His office has opined that office holders such as county clerks must obey a law until a court officially declares it unconstitutional.

This opinion makes perfect sense. If every county clerk could decide how to interpret the effect of Obergefell on our law, then, as I told the subcommittee, we would have chaos.

One clerk, following the attorney general’s opinion, could say that the law is still valid until a court rules it is invalid and might only issue licenses to male and female couples.

Another clerk could say there is no marriage license law because Obergefell invalidated it, and the Legislature hasn’t replaced it. And another clerk could decide the Obergefell decision itself somehow “amended” the law to authorize any two people to get a license.

Only a court can “judge” which of those views is correct, and no judge has done so.

So why aren’t county clerks doing what the attorney general said? Why aren’t they following the law until a court tells them to stop? Simple. They will get sued for not issuing a license to same-sex couples, and they will have to defend that lawsuit at the expense of local taxpayers. And that is where the amendment comes in.

The amendment protects all officials who will obey the law. It does so by allowing the attorney general to defend them and, if the attorney general declines, then the state will indemnify that official (and local taxpayers) from any legal fees he or she has to pay and from any court costs if they lose.

That amendment was adopted. Then the subcommittee delayed a vote on the bill, as amended, until next year.

The vote was delayed because two pending lawsuits that I am handling as an attorney (The Tennessean wrongly reported that I was a “party”) may resolve the question of what law, if any, still exists after Obergefell.

However, if over the next few months the Tennessee court system decides it does not want to hear those cases and refuses to determine what the effect of Obergefell was on our law, then we will come back to the bill. And if the bill is enacted, maybe some of our county clerks will muster the courage they need to obey the law and follow the attorney general’s advice to that effect.

If just one county clerk then decides to obey the law, a same-sex couple will sue him or her. But he or she will be defended in court by the state. And the courts will not be able to avoid making a decision in that case on what law, if any, still exists after Obergefell.

What happened in that subcommittee was a significant step toward resolving a huge, unanswered constitutional question left hanging by Obergefell.

If the bill has to be taken up again next year, then opponents will have to address the legal and constitutional question the amendment raises. The focus will not be on whether we should have same-sex “marriage,” but on whether we should uphold the rule of law. That will be a significant change in the nature of the debate.

And now to paraphrase Thomas Jefferson, you are better educated than the person who read the newspaper story.


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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Tennessee Legislators Seek to Protect You From Judges

I want to thank some of our state legislators for taking a stand on a critical issue on your behalf that you probably know nothing about. Liberals and judges who hope to further transform our form of government to their liking hope that you will not read what follows.

Putting the Transformation in Context

To understand the next step in the judicial transformation of our country, you must understand the context. After 200 years, the U.S. Supreme Court in Obergefell v. Hodges asserted that the U.S. Constitution somehow gave it jurisdiction (power) over the Legislatures in the several states to redefine marriage. But then it purported to impose that definition on the states. Purporting to tell a state what laws it must enact was a huge overreach by the Supreme Court.

Now the question is whether that decision will be used by judges to assert jurisdiction over the state Legislatures to redefine what it means to be a parent and impose that definition on them. That very question will soon be answered in Tennessee.

When is a ‘Wife’ not a ‘Mother’ of a Child?

This question arises because of a lawsuit pending in Knoxville. Two “married” lesbian women are seeking a divorce. Nothing too controversial about that anymore, but what is controversial is whether the wife who is not related to the child biologically is the “mother” of the child. The answer is important because a mother’s custody rights have historically depended on that person actually being the child’s biological mother.

To obtain custody rights, the woman not related to the child biologically points to a statute the Legislature enacted by law forty years ago. That statute says a child will be presumed to be the legitimate child of a “husband and wife” if the wife has a child by artificial insemination with the consent of “her husband.”

Clearly, though, she is not a “husband,” so she argues that the Obergefell decision now requires the Court to “interpret” the statute by substituting the word “spouse” for the word “husband.” Sadly, Tennessee’s Attorney General Herbert Slatery has filed a brief in support of her argument.

Who Gets to Decide the Policy Question?

What our attorney general seems not to understand is that substituting the word “spouse” for the word “husband” is a change in the underlying public policy reflected in the statute. It is a change from a belief that complementarity exists between the biological sexes and that it has value in the nurture of a child to a belief that there either is no complementarity between the sexes or, if there is, it makes no difference in the life of a child. Worse yet, the judge in the case has already said that “no policy [is] being determined by the Court” in connection with this suggested interpretation of the statute!

Legislators to the Rescue

Because our attorney general doesn’t seem to know that there are two different belief systems in conflict here, and that different belief systems affect policy decisions in different ways, 52 state representative and 19 state senators are asking the judge in that case to let them intervene. They want to defend the authority given them under the state constitution to decide how to determine and address parent-child relationships in these new marital contexts. I am proud to represent them.

How This Case Transforms Government

You might think, “Who cares?” since you are not in a same-sex “marriage” and you had children the old fashioned way. Moreover, you may be wondering how this case affects a transformation of government. Here’s the answer.

Our attorney general, with the help of the U.S. Supreme Court’s Obergefell decision, is effectively urging our judges to continue shifting the balance of powers in our government away from elected, accountable representatives to themselves.

When government’s power gets shifted from those you can elect and can hold accountable to judges who you really cannot elect and cannot hold accountable, then power has shifted away from you.

If our judges agree with our attorney general, then their decision will become judicial precedent for rewriting other laws, maybe one you do actually care about. With each such decision, our judges will effectively be shifting public policy decisions right out from under your control. While you watch the state Capitol for “bad” laws, the transformation of government itself is taking place in the courthouse.

If someday you find yourself completely powerless before a black-robed oligarchy, you’ll know why.

Thank God these legislators are fighting for you.

Read the Motion to Intervene


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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Are Tennessee Officials Content to Ignore the Law?

It is becoming increasingly apparent to me that we have a number of state officials (non-legislators) and local elected officials who either don’t know the law or are content with ignoring it. An opinion from Attorney General Slatery proves my point.

I was recently preparing for oral arguments in a lawsuit I am handling on behalf of various ministers and residents of Williamson County against the Williamson County clerk. In the course of my preparations, I ran across an opinion from our state’s attorney general that proved the point I was going to try to make to the court.

The Background Context That Exposes the Lawlessness

To appreciate one of the points I was going to make in court, you need to understand what the lawsuit is about.

The lawsuit alleges that Tennessee’s marriage license law, which requires that applicants be a male and female, may be unconstitutional because of the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015. The Supreme Court “held” that laws like Tennessee’s were invalid, but despite what you may think based on reports by the media, that law was not part of the Supreme Court’s Obergefell decision.

In other words, no court has “officially” ruled on whether Obergefell invalidated our law. That probably seems like a technicality, but that’s where the attorney general’s opinion comes in.

The Attorney General Says, ‘Obey the Law’

One of the points I wanted to make in my oral argument was that until a court rules that our law was somehow “amended” by Obergefell, no court decision has ever authorized the county clerk to issue a license to anyone other than male and female applicants. Until then, my argument was that the county clerk had to obey the existing law and that by issuing licenses to same-sex couples, the clerk was acting illegally.

It turns out that my view of the law is the same as Attorney General Slatery’s!

In 1984, the attorney general was asked if elected officials such as county clerks still had to obey a state law even if the attorney general had issued an opinion to the effect that the courts would hold the law unconstitutional. This is important because I’m sure our attorney general would say that our marriage license law would be invalid if ever challenged in court.

Here is what the attorney general said:

[U]nder relevant constitutional principles, the public, individuals, and ministerial officers [like County Clerks] must presume a state statute to be constitutional until it is declared unconstitutional by a court of competent jurisdiction.

What the Attorney General’s Opinion Means

That means a county clerk has no legal authority to determine if our law is unconstitutional after Obergefell and certainly has no authority to determine if the effect of Obergefell was to judicially remove the language in the statute requiring applicants to be a male and female.

The attorney general’s opinion rightly concludes that only a court can interpret what effect Obergefell had on our marriage license law. Moreover, the attorney general essentially said that even if he tells the county clerks that Obergefell rewrote the law, that opinion is not a court’s opinion and the law should still be obeyed.

What This Means for Our Attorney General

After reading that attorney general’s opinion, I have a lot of questions. Here are two of them:

  • Why has our state attorney general not told the county clerks to obey the law until a court says otherwise? After all, that is the attorney general’s “official” opinion.
  • Why is the attorney general sitting out the lawsuit we’ve filed instead of joining us in asking the court what, if anything, is left of our marriage license law? Opposing our view of Obergefell seems better to me than being apathetic about the law being flat out ignored.

What This Means for All Our Elected Officials

But this question is the real kicker for me: Why hasn’t some state or local official brought their own legal action to have a court determine what the effect of Obergefell was on our law?

The only thing I can figure is that they either support same-sex “marriage,” or, more likely, being lawless is just easier for them. Apart from our little lawsuits, no one seems to care if they disregard the law.

I guess we’ll soon find out if even our judges care whether our elected officials obey the law.

Listen to the key exchange I had with the Court of Appeals about this point.


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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