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Gallup Reveals Same-Sex ‘Marriage’ Not in Demand Since Obergefell

This week marks the two-year anniversary of the Obergefell decision, and while the secular media made us believe Obergefell was responsive to a huge demand for same-sex “marriage” among homosexuals, according to a new Gallup poll, the data tells a different story.

Since the Supreme Court ruling, the percentage of LGBT adults in a same-sex “marriage” rose from 7.9 percent at the time of the decision to 9.6 percent one year later, but over the next year, the percentage rose to only 10.2 percent. Additionally, over that two-year period, same-sex partnerships decreased by 3.5 percent. Most interesting of all, LGBT adults still prefer marriage to a member of the opposite sex. Read that statement again; 17.3 percent of LGBT adults are married to or cohabiting with an opposite-sex person, while 16.8 percent of that demographic is married or cohabiting with a same-sex person.

Looks like the media’s depiction of some great pent-up desire among homosexuals for same-sex “marriage” may have been fake news.

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U.S. Supreme Court and the Seal of the State of Arkansas

U.S. Supreme Court’s Unreported Arrogance

The arrogance of our United States Supreme Court was on full display this week in a surprise decision that went grossly underreported in the mainstream media. If you heard about the decision, I’d be shocked. Moreover, the decision proves that the Court is now in the business of issuing edicts that states must follow without the courtesy of any attempt to explain how they are to do so.

The decision was in a case called Pavan v. Smith. The case involved two lesbian couples that had each had a child by artificial insemination. They sued the state of Arkansas because its birth certificate statute did not allow both of the women in the “marriage” to be “mothers.” They argued that the U.S. Supreme Court’s same-sex “marriage” decision in 2015, Obergefell v. Hodges, required the state to treat their marriages the same as opposite-sex marriages by letting them both be “parents,” too.

Without going into great detail, the Arkansas Supreme Court disagreed. It held that Obergefell applied only to the issuance of marriage licenses, not to laws designed to determine who the biological mother and father of a child are. And the Court held there was no unequal treatment because the presumption that a man might be the father of his wife’s child was based in biological reality, not arbitrary distinctions between opposite-sex and same-sex marriages that the Constitution might otherwise prohibit.

The women asked the U.S. Supreme Court to review the Arkansas Court’s decision.

An Arrogant Decision-Making Process

The normal result of such a request, if the U.S. Supreme Court thinks a case worth deciding, is to agree to hear it, to set a schedule for briefs by the parties (and other interested organizations), and to schedule oral argument. That is what the women hoped would happen.

Instead, the U.S. Supreme Court simply issued a decision and said the Arkansas Supreme Court got it wrong, that Obergefell’s constitutional principle did apply beyond marriage licenses to birth certificates, and ordered the state to issue a birth certificate listing two mothers.

That the U.S. Supreme Court issued a decision without the benefit of briefs and oral arguments is extraordinary and demonstrative of the Court’s arrogance. As Justice Gorsuch, joined by Justices Alito and Thomas, said, summary decisions like this are reserved for cases in which “the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.”

Given that two other state courts had come to the same conclusion as Arkansas and a couple of other courts had not, it is clear that not all judges thought the law was “settled and stable.” So, the advocates for the homosexual agenda parading as Supreme Court Justices must have thought all those other state judges were just stupid and that they needed to be smacked down sooner rather than later.

An Arrogant Edict, Not Reasoned Judgment

But here is the proof that the U.S. Supreme Court is now into issuing arrogant edicts, not judgments based on legal reasoning.

To appreciate what follows, you have to understand that a state Office of Vital Records is a creation of statute, which means it only has the authority to receive and file documents that the Legislature has defined by statute. If the Legislature passed a statute requiring birth certificates to be printed on construction paper and filled out by crayon, something typed on heavy cotton fiber paper, though more permanent and aesthetically superior, could not be filed.

Here’s why that is important. Unless a court is going to redefine the word “husband” to mean a mother’s “spouse,” there is no language in the Arkansas statute that speaks to documents containing the names of two wives or two mothers. But did the U.S. Supreme Court bother to engage in any analysis of how the statute could be “interpreted” to produce the language necessary to authorize the receipt and filing of a birth certificate with the names of two women on it? No.

In other words, the Court could have said, “Arkansas, you need to allow the filing of a birth certificate with the names of two married women on it, and because we understand that you must have some kind of statutory language giving you the authority to do so, we are now construing the word ‘husband’ in your birth certificate statute to mean the ‘spouse’ of the mother.”

Had it done so, there would at least be some basis for Arkansas doing what the Court wants it to do. But the Court doesn’t care whether there is any statute that actually authorizes what it wants done, nor does it care whether there is even any half-legitimate way to construe an existing statute to authorize what it wants done.

“Just do it”—just issue and record the birth certificate with two “mothers”—is, in sum, what the Court said to Arkansas.

Now the question is whether Arkansas and other conservative states that believe in federalism and the separation of the powers between the judicial and legislative branches will find a way to tell the Court what it can “do” with its “just do it” edict.


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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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 FACTn.org.

Media Contact: Laura Bagby, Director of Communications | Office Phone: 615-261-1338 | email: laura.bagby@factn.org

Tennessee map showing Bradley County

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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Rainbow, state of Tennessee, a gavel, and four sets of lesbian couples

Lesbians’ ‘Fake Liberty’ Threatens True Liberty

We hear a lot these days about “fake news,” but what about “fake liberty?” That’s exactly the kind of liberty four lesbian couples asserted in a lawsuit they recently filed against the state of Tennessee.

On May 7th, the lesbian couples filed suit in state court asserting that “a central part of the liberty interest protected by the Due Process Clause” is the right to “bring up children.” Given that no one is preventing these women from having children or from parenting the child one of them has, what is their constitutional problem?

Essentially, they are claiming that as a matter of constitutional “liberty,” they are entitled to a birth certificate that indicates that a person with no biological relationship to a child is a “mother” simply because she is married to the person who bears the child.

As same-sex couples did with their demand that the state shows its approval of their relationships by the issuance of a marriage license, these lesbian women now want the state to “sanction” their child-bearing practices with the issuance of a birth certificate that gives a non-biological person the legal status of “mother.”

What Is the Real Issue?

Before anyone accuses me of being mean-spirited for not wanting two lesbians to both be recognized as mothers on a birth certificate, let’s make sure we understand what we’re talking about here. We are not talking about what makes for good public policy. We can argue the merits of birth certificate policy with our lawmakers at another time. We are here arguing about what the Constitution requires. That is the real issue.

And it is in regard to the constitutional claim that we need to pay heed to what Justice Clarence Thomas said in his dissenting opinion in the Supreme Court’s same-sex marriage decision, Obergefell v. Hodges, “[R]eceiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”

What Is True Liberty in a Constitutional Sense?

Justice Thomas’ explanation of liberty is worth reading:

To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. . . . At the founding, such conduct [as marriage] was understood to predate government, not to flow from it.

In other words, the freedom or liberty one had to marry flowed not from a right to marry granted by the government, but from “nature” and from a kind of natural “conduct” that predated government. That kind of liberty and right makes sense. It is within our tradition that true liberty and true rights come not from government, but, as our Founders would have said, from our Creator. Certainly, none of the Founders or the Framers of our Constitution, who believed in limited government, would have argued that a person had a liberty right—that a person was free—to access benefits the government chose to give to marriage.

Applying a true understanding of liberty to the new lawsuit, I think we can safely say that none of the Framers would have said that liberty was the right of a person to be recognized by the government as a mother or father where such was not “natural” (inhering in the nature of things) and pre-political. And, clearly, no one would have believed that mere government action—the issuance of birth certificates for record keeping purposes—would have given rise to a liberty right to be recognized by the government as a parent.

Think of it this way: No one’s liberty, not even that of a heterosexual couple, is threatened by the state not issuing a birth certificate. The absence of a birth certificate would not change my status as the father of my daughter. I am, by nature and not by government action, her father. The lesbians are essentially arguing that they are not free unless they are granted a status by the government that the irrevocable Laws of Nature have naturally denied them.

Does Liberty Now Come From Government?

But here’s the point for today: We are headed into some dangerous territory when liberty morphs into a right to government action and liberty depends on a status granted by government. True liberty is endowed by our Creator, not granted by the government. And true liberty is freedom from government action, not a right to government action.

If we forget this, then we may have to relearn the hard way that a government that grants our liberty is a government that is at liberty to take it away.


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