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Nature Isn’t Natural Anymore

A new law stating that words used in Tennessee’s statutes should be given their “natural and ordinary meaning” provoked a firestorm of controversy by the proponents of same-sex marriage. It appears that the word “natural” in the legislation is the problem. But if so, then we really have a problem.

After the bill passed, the head of the state organization that led the opposition to the bill told a reporter that the word “natural” in the new law concerned him. Specifically, he said, “We know the way ‘natural’ is typically used in respect to our relationships. Our families aren’t natural.”

That is a very telling statement. According to Webster’s Dictionary, “natural” means “being in accordance with or determined by nature.” Thus, what we have is an acknowledgment (probably unintended) that people don’t “typically” think of a sexual relationship between two people of the same sex as being “natural.” In other words, a same-sex relationship that is sexual (as distinguished from social) is not “natural” within the “natural and ordinary” meaning of the word “natural.”

But it is also an acknowledgment that the kind of family that same-sex married couples have is not natural in the same way that families of a married man and woman are. Whether a man and a woman actually have children or are physically capable of having children is not the issue in this context; it’s that having children is “natural” to that type of relationship or, in Webster’s words, “in accordance with nature.” Nature will never produce a family through the sexual union of two people of the same sex.

I don’t say this to demean anyone because, after all, I’m not the one who said the relationships and families at issue were not “natural.” I’m just calling attention to what was said. But my point is simply this: It is hard to forever suppress nature. It bubbles back up in our consciousness and comes out in conversation, sometimes when we least expect it. In the words of professor J. Budziszewski, there are some things we just cannot not know.

The only way for what is not natural to become natural is to give the word “natural” an unnatural meaning. And that is where we are headed as a society. We are being asked to give up believing that there are any things that are “natural” to our humanity and pretend that things are only what the law says they are.

In the context of the LGBT agenda, that means words like “marriage,” “fatherhood,” “motherhood,” and “family” will now only mean what we say they mean. They are mere words without meaning until we assign them meaning by a law; there is nothing naturally true about any of them.

However, the problem is that giving a word a meaning contrary to its natural meaning requires us to give a new meaning to all the words associated with that word. That necessity is currently reflected in our struggle to figure out what to do with marriage-related words in other laws now that our law has abandoned the natural meaning of marriage.

And herein lies our real problem—constructing a universe of meaning to replace the universe of meaning we “naturally” had. That is a God-sized task, and it begins with giving the word “God” a new meaning, too; it now simply means “us.” To me, that just doesn’t seem natural.


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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Barronelle Stutzman

Religious Liberty As We’ve Experienced It Is Dead

Last week the Washington State Supreme Court ruled that a florist, Barronelle Stutzman, could be forced by her state to provide floral arrangements for a same-sex “wedding” ceremony in violation of her religious beliefs. What’s surprising to me is that her loss is surprising to so many Christians.

At issue in Ms. Stutzman’s case was a statute that prohibited those engaged in public commerce from not providing services to someone because of their sexual orientation. Several technical, legal arguments were made as to whether the statute should be construed to apply to her, but when you’re fighting for religious liberty on technical grounds related to the wording of the statute, then your “win,” if you win, is short lived. A liberal state will just amend the statute to close the “loophole.” That kind of fight for religious liberty, while helpful in the moment, is, as I said last week, a “useless effort” from a long-term perspective.

The real issue for those who care about religious liberty is found in the fact that the state Supreme Court rejected Ms. Stutzman’s argument that the court had “to balance her right to religious free exercise against [the customer’s] right to equal service.”

Ms. Stutzman’s Claim Actually Lost Nearly a Century Ago

Ms. Stutzman’s legal argument was before the U.S. Supreme Court 98 years ago and “religious free exercise” lost. Ironically, it was even a case about marriage! The case was Reynolds v. United States.

The question was whether Mr. Reynolds could be punished for polygamy under the U.S. laws then applicable to the Utah territory. Read carefully what the Supreme Court said of his claim that to punish him for polygamy would violate his right to the free exercise of religion:

The only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. . . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? . . . Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The law punishing polygamy was upheld.

It was upheld because the religious views of the time reflected in the common law and in the history of Western Civilization held that polygamous marriages were “odious” and an “offense against society.” Thus, the Court reasoned, the Framers of the Constitution could not have intended for the free exercise of religion to be an excuse to violate laws founded on the country’s moral beliefs.

Why the Stutzmans of America Will Continue to Lose

To understand why Reynolds lost and why Ms. Stutzman had to lose, we must understand the belief system that undergirded the Reynolds Court’s decision. It was a belief that a legal structure (not just a particular law) rests upon some moral code, and religious freedom can’t be used to violate the moral code found in the law. That was true then, and it is true now.

What has changed—and it explains why polygamy could be banned in 1879 and why it will not be able to be banned in the coming years—is the religious beliefs that informed our laws back then. We no longer believe that God has imposed any laws on the social order that all must recognize, including those who make our civil laws.

For example, today our moral code is increasingly finding nothing wrong with same-sex “marriage.” Therefore, a religiously grounded right not to participate in a same-sex “marriage” (unless perhaps one is a church or a minister) is not acceptable. An exception would violate today’s prevailing religious orthodoxy. The same will be true for polygamy.

Put another way, in the language of the Reynolds case, same-sex “marriage” is now “okay” not “odious.” It is more “acceptable” to society, not an “offense” against it. Therefore, Ms. Stutzman cannot make her “religious beliefs superior to the law of the land.”

Sadly, over the last century, the Christian Church became complicit in this cultural change in the religious underpinnings of our legal structure by making Christianity a matter of strictly personal behavior and by not wanting our ministers to discuss the issues of our day from the pulpit.

The vacuum the Christian Church left has been filled by another religion, secular humanism. Religious liberty for those whose beliefs are consistent with secular humanism is alive; it’s just not alive for those who, like Stutzman, hold to biblical beliefs.

The Church is now reaping the fruit of the pietism and cultural silence it has sown. Thus, conservative Christians shouldn’t be surprised anymore when courts uphold laws that force them to violate their beliefs.


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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young husband and wife with baby holding yellow flower

Legislators Address the Unintended Consequences of Judicial Policy-Making

The front page, headline story in The Tennessean this week was “Bill: Define mother, father, husband, wife by biology.” It has already generated a firestorm of controversy in some circles.

The bill sounds simple because it accords with what we intuitively think those words mean. For example, as a male, I will never be a “wife.” I am the father of my daughter and could never have been her mother. Even same-sex couples don’t “designate” one person to hold the “title” we have given the opposite sex. In same-sex relationships, both men are husbands and both women are mothers.

So how is a bill controversial that amends the definition section of the Tennessee Code to say simply that when judges (and others) run across these four words in the substantive law, they mean what everyone has historically thought they meant?

According to supporters of same-sex “marriage,” it is horrible because of the “unintended consequences.” According to them, the unintended consequences “could be great because of the number of times the word comes up in the code.” I agree about unintended consequences, but not about what they are and the reason for them.

Who Created the Problem?

The problem of unintended consequences isn’t the fault of the proposed legislation. It’s the consequence of the Supreme Court making public policy in June 2015 with its decision in Obergefell v. Hodges.

In that decision, the court disconnected biology and procreation from the meaning of marriage and purported to amend long-established marriage licensing statutes to require same-sex “marriage.” But it forgot (or didn’t care) that every other statute involving family law was based on the assumption that marriage was connected to biology and procreation. This is where the unintended consequences come in.

Because of Obergefell, everyone is going to have to grapple with those unintended consequences relative to these other laws. What are judges and school administrators, for example, to do with the statutes they have to administer that are based on the “old” definition of marriage?

From a judicial perspective, it could mean that all those laws are, like the marriage license law, unconstitutional. In fact, some judges have said as much. But, again, that is not a fault of the proposed law, but rather a consequence of what the Supreme Court did.

Who Should Solve the Problem?

The problem is going to fall disproportionately on state courts that have to grapple with the statutes that govern family law issues. A judge in Knoxville is currently being asked to redefine one of these words under the guise of “interpreting” the statutes. But if judges do this, it will just exacerbate and perpetuate the problem of judicial policy-making radically advanced in Obergefell.

The fact is courts are not charged, under the Constitution, with “conforming” the law to changing cultural mores; legislative bodies are or else the people, by means of constitutional amendment. That is why it is constitutionally correct and wise for the Legislature to tell our judges (and all others who will have to administer statutes with these words) that the words in question should be given their normal meaning. And it is wise they do so because of the larger issue at stake.

The Larger Issue

The issue isn’t, as some would suggest, meanness or intolerance. It’s about trying to salvage the rule of law.

As one justice on another state’s Supreme Court recently said, “If we cannot depend upon the meaning of words as understood at the time the words were chosen by their speaker or writer, the ability to communicate any idea from one time to another is lost. The ability to communicate any truth from one time to another is lost, and therewith the rule of law.”

That is what is really at stake. The U.S. Supreme Court, by its judicial policy-making and its willingness to disconnect the definition of marriage from its long-understood meaning, greatly accelerated the process of killing the rule of law. Justice Roberts’ dissent in Obergefell acknowledged as much: “Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law.”

When the next round of cases comes to the High Court through challenges to the definition of these other words in these other statutes, it will do one of two things: finish killing the rule of law, or repent of the judicial policy-making and constitutional revisionism in which they engaged in Obergefell and return family policy law to the states, their Legislatures, and their people.

Until then, we are all going to have to live with the ambiguity created by the unintended consequences of what the Supreme Court did in Obergefell.


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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Judge Roy Moore and wedding rings

Who Does Judge Roy Moore Think He Is?

The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.

The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.

And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.

The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”

This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.

A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.

So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.

Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.

Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?

Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1

So here is what the U.S. Supreme Court said in Obergefell:

“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”

To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.

But the Obergefell Court also said this:

“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”

Notice that both of these sentences represent the “holding” of the Obergefell court.

So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?

Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?

Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”

Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.

That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.

Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.

__________________________

NOTES

  1. Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.

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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