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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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Marine’s Religious Liberty Stripped for Bible Verse Display

The Supreme Court refused to hear the case of Marine Monifa Sterling, who was court-martialed for disobeying her superior when asked to take down the Isaiah 54:17 Bible verse from her workstation, although evidence showed that others were allowed to display personal items. The verse in question? “No weapon formed against me shall prosper.”

By rejecting the case, the decision by the Court of Appeals for the Armed Forces stands, and Sterling’s religious liberty has been severely hampered. “The military court’s outrageous decision means federal judges and military officials can strip our service members of their constitutional rights just because they don’t think someone’s religious beliefs are important enough to be protected. Our service members deserve better,” says Kelly Shackelford, CEO and chief counsel for First Liberty.

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Gorsuch Confirmed as Majority Prevails

Senate Republicans exercised the so-called “nuclear option” on Thursday, clearing the path to confirm Neil Gorsuch to the Supreme Court on Friday. The change in the cloture process means that all future Supreme Court nominees can be confirmed by a simple majority. Cloture is the parliamentary procedure by which Senators vote to end debate on a particular subject and take a vote on the merits of that subject.

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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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Texas AG Takes Supreme Court Judges to School

I have really come to admire Texas Attorney General Ken Paxton. After suing the Obama administration more than forty times in the last eight years, the Texas attorney general has now asked the Texas Supreme Court to stick to judging instead of lawmaking and to limit the reach of the Supreme Court’s same-sex “marriage” decision, Obergefell v. Hodges. In doing so, Paxton’s brief gave the judicial branch an excellent primer on the limits of its authority.

The Texas attorney general has told the Texas Supreme Court that the Obergefell ruling does not require Texas to apply all the state’s laws related to heterosexual, natural marriages to same-sex “marriages.” The point of the lawsuit isn’t whether the state Legislature should, for policy reasons, treat both types of marriages the same for all purposes, but whether the state’s courts should apply the Obergefell decision in a fashion that takes those decisions away from the state Legislature.

‘Sloppy’ Talk Makes for ‘Sloppy’ Decisions

The Texas attorney general’s brief begins with the following noteworthy statement to which I would add a hearty Amen! “State courts tasked with applying Obergefell should bear in mind foundational concepts of federal jurisdiction that are often ignored in the regrettably sloppy public discussion of U.S. Supreme Court rulings.”

Indeed, the public discussion about what the “ruling” in Obergefell did and did not do has been sloppy. In fact, as I’ve previously noted, it’s been sloppy even within the office of Tennessee’s attorney general. What’s been sloppy is the jurisprudential fact that it is the “judgment” of the Supreme Court that is key, not the opinions of the justices.

Opinions Are Not the Constitution

As Attorney General Ken Paxton explained:

A federal court may or may not choose to write an opinion to explain the basis for its judgment, but every word of that judicial opinion does not thereby become constitutional law that binds other branches of the state and federal governments. While the judgment in Obergefell is authoritative, Justice Kennedy’s lengthy opinion explaining that judgment is not an addendum to the federal constitution and should not be treated by state courts as if every word of it is the preemptive law of the United States. (emphasis in the original)

And that leads to the next important jurisprudential fact that Paxton noted and about which we’ve gotten sloppy: “[A] federal district court judgment against state officials does not amend the Texas Constitution or the Texas Family Code. And it most certainly does not require state courts to act as if those provisions of Texas law no longer exist.”

In other words, there are laws in Texas that the Obergefell Court did not rule on, and they are still good law until some court rules that they, too, are invalid or the Legislature changes them.

Different Issues Must Be Treated Differently

Attorney General Ken Paxton summed up the preceding statements by noting that state judges cannot confuse “what five Justices of the U.S. Supreme Court said in explaining” the judgment in Obergefell—a right to marry case—with “different constitutional questions in a different case”—cases deciding how laws applicable to heterosexual couples apply to same-sex couples.”

For example, incest laws prohibit siblings, a brother and a sister, from marrying, ostensibly because of genetic abnormalities should they reproduce. But should we apply that “equally” to two brothers who want to marry even though they can’t produce offspring?

To allow marriage between the brothers and not between brothers and sisters because one can’t produce offspring and the other can is to treat them differently, arguably a violation of equal protection according to liberals. But to treat them differently is to recognize that the two sexual combinations are, in fact, different, an anathema to liberals. Can the Legislature treat the two differently, or does Obergefell require that they are treated the same?

Obergefell didn’t decide that question, and Justice Kenney’s majority “opinion” in that case can’t be mechanically applied to decide this different kind of case.

Federalism and the Rule of Law Are at Stake

The Texas attorney general concluded by emphasizing why state judges should not willy-nilly rewrite and reinterpret state laws to make them “fit” this new kind of marriage, which the existing statutes did not contemplate. “Principles of comity, federalism, and the rule of law should make state courts particularly wary of using the federal constitution to expand upon newly created substantive due process rights that have the effect of undoing the work of state lawmakers,” he said.

In other words, state judges should not abdicate the state’s rights relative to family law to federal judges (“comity” and “federalism”). And they shouldn’t engage in legislating from the bench (the “rule of law”); legislating is the “work of state lawmakers.”

What Will Our Legislators Do?

This session, Tennessee’s legislators will have a chance to vote on bills designed to prevent state courts from “undoing the work of state lawmakers” and help them stick to judging the law, not rewriting it. Let’s hope our legislators will stand up for federalism and the rule of law in Tennessee as well as Attorney General Paxton did for Texas.


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.

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