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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.

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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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