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FACT Files Brief With SCOTUS Supporting Christian Baker

FACT was proud to join with 32 other pro-family policy organizations in an amicus or “friend-of-the-court” brief filed with the U.S. Supreme Court in support of the First Amendment rights of baker Jack Phillips. Phillips is challenging the lower court’s decision that would compel him to use his artistic expressions to celebrate an event that violates his religious beliefs.

Both the Department of Justice and at least 86 members of Congress have also filed their own amicus briefs in support of Phillips, along with many other concerned individuals and organizations, for a total of 45 such briefs so far.

Alliance Defending Freedom will be arguing on Phillips’ behalf before the U.S. Supreme Court this fall.

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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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