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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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