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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 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 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.

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Tennessee’s Attorney General: ‘Winning’ the Battle, Losing the War

Not long ago I again watched the Bridge on the River Kwai. I couldn’t help but think of that movie when I was on the other end of the Tennessee Attorney General’s latest abandonment of our state’s prerogatives under the Tenth Amendment.

The movie is set during World War II. It involves a British colonel and his men who are being held in a Japanese interment camp. The Japanese are desperate to complete the construction of a bridge over the river that is critical to their military success. They are doing a horrible job and it isn’t going to be finished in time.

The colonel believes that he can demonstrate to the Japanese the ingenuity, resiliency, and engineering prowess of the British by building a better bridge and building it in a timely fashion. In the end he realizes he lost sight of the fact that it was a war he and his men were in, not a contest to prove their mettle or their engineering prowess.

And that, to me, is a pretty accurate analogy of what our Attorney General did last week. He lost sight of the “war” that is being fought between the states and the federal government, the U.S. Supreme Court in particular, over our state’s prerogatives under the Tenth Amendment. Instead he focused on the “battle” over whether a statute should be invalidated because of the Supreme Court’s same-sex decision last summer, Obergefell v. Hodges.

You might think that defending the constitutionality of a statute against an attack based on a U.S. Supreme Court decision is defending our state’s sovereignty. But the Attorney General found a sorry way to “defend” the statute.

The statute in question says that if a married woman, “with the consent of her husband,” has a child by artificial insemination, then the child will be the legitimate child of the “husband and wife.” Is there anyone who thinks that the word husband in that statute, when juxtaposed to the other person in the marriage who is obviously a female, is anything other than a male? Apparently the Attorney General does.

The question was raised because a woman whose wife had a child by insemination is now arguing in a case in Knoxville that the Supreme Court’s Obergefell decision makes that statute unconstitutional because it only applies where there is a male husband. Maybe Obergefell extends beyond simply the right to marry to some new right to be a parent. Maybe it doesn’t. She argues that the word “spouse” must be judicially substituted for the word “husband.”

So, to “save” the statute from the possibility of being invalidated, the Attorney General filed a brief last week in which he argues that a Supreme Court decision last summer that redefines who can get married has somehow made a word that was clearly referring to a man when it was used 38 years ago ambiguous and susceptible to interpretation using the gender neutral term “spouse.” In other words, the suddenly ambiguous word “husband” can be “interpreted” in a way to make the gay rights community happy.

What he should be arguing is that family law, particularly that aspect of family law dealing with parent and child, is inherently an object of regulation by that state. That’s what the Supreme Court said in 2013 in United States v. Windsor. Therefore, Obergefell cannot and should not be extended in disregard of Windsor to usurp from the sovereignty of the state yet one more matter of family law.

But, no, winning the battle to keep a statute on the books is more important to the Attorney General than trying to win a war on our state’s sovereignty. It’s a lot like proving you can build a bridge, even if it helps you lose the war.


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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Cleaning Up the Supreme Court’s Obergefell Mess

When the U.S. Supreme Court in the Obergefell case decided it could redefine marriage for all the states, it created a mess. Fixing it will take an assist from the states. A decision this week by the same state Supreme Court that first gave us same-sex “marriage” demonstrates the problem. Perhaps Tennessee can help bring about the fix.

In 2003, the Supreme Court of Massachusetts said that the state constitution required same-sex “marriage.” But the state’s Legislature did not revise all the statutes governing family law to reflect this redefinition of marriage. My guess is that no state has changed all its family laws as a result of the U.S. Supreme Court’s Obergefell decision. Tennessee sure hasn’t. And that is what is creating the current mess.

This week the Massachusetts Supreme Court said that a woman was the legal parent of a child her female partner had by artificial insemination. Note: they were not married. The lawyer for the woman not related to the child cited two laws to give herself the legal status of parent (incidentally, the lawyer is Mary Bonauto, who argued for the same-sex couples in Obergefell).

First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus, meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?

Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!

But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”

Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commented on the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy . . . the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”

In other words, she is saying that the U.S. Supreme Court has put the Tennessee courts (and all state courts, really) in the position of having to rewrite all of their state’s family law under the guise of constitutional “interpretation.” However, if they don’t, if they can resist the judicial activism we saw in Massachusetts this week, then perhaps the U.S. Supreme Court, on appeal from cases like the one in Tennessee, will realize it’s going to have to rewrite all the family law in every state and that doing so will be going too far, destroying the Court’s last vestige of legitimacy.

Hopefully, if confronted with situations like these and the contortions in legal reasoning they will have to engage in to reinterpret every state’s family law, the Supreme Court will realize why our Founding Fathers left family law up to each state and will reverse Obergefell.

For that to happen, some state courts are going to have to force the issue back to the U.S. Supreme Court by refusing to do their dirty work for them, and legislators are going to have to resist the temptation to change the wording in our statutes. Legislators need to leave our laws alone and, looking our state judges in the eye, dare them to reinterpret the plain language of statutes they have passed.

The process starts in Tennessee on October 21st when a Knoxville trial court will decide whether the word “husband” in Tennessee’s insemination statute includes a “lesbian spouse.” Stay tuned. The road to returning marriage back to the states may run through Tennessee.


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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The Supreme Court Is the Tip of the Iceberg This November

Certainly, the appointments that will take place within the U.S. Supreme Court over the next four to eight years are important, but we can’t focus only on “the tip of the iceberg” when it comes to the federal judiciary and the increasing control it exercises over our ability to govern ourselves.

Appreciating the bigger picture begins with understanding that the U.S. Supreme Court will hear only 70 to 80 cases a year. No doubt, those will be major cases with a potential for a huge impact, but the bulk of the decisions that interpret the U.S. Constitution and construe our laws are made by the lower federal courts—the federal district court judges and federal judges on the Circuit Courts of Appeal.

What has taken place at that level over the years shows that who is President can be just as important with respect to these lower courts as it can be with respect to the Supreme Court. President George W. Bush appointed 330 federal judges, and Bill Clinton appointed 379. President Obama has successfully seated a total of 329 federal judges during his two terms. And remember that all of these appointments are lifetime appointments as well.

Have the appointments by President Obama made a difference? Sure have.

When President Obama took office, only three Circuit Courts of Appeal had more Democrat-appointed judges than Republican-appointed judges when President Obama took office. Now, nine of the thirteen circuits do. That’s why all the federal Courts of Appeal that ruled on same-sex “marriage” ruled in favor of it, except for one, the Sixth Circuit.

And why do you think Tennessee filed its lawsuit over President Obama’s gender identity bathroom “edict” in a Texas federal court rather than the federal district court down the street from the Capitol here in Nashville? It’s because the federal judges here are all so liberal.

The good news is that over the next eight years, some of these lower court federal judges will retire and the President during that period may have a chance to shift some of those courtrooms back to the right.

But if Hillary has eight years to continue the trend, then there will be no federal courts a conservative can look to for a ray of hope. And the road back may be a long one, as the precedents decided by those judges will linger long after they are gone from the bench.

So, if you’re thinking about who will be appointing the Judges that you’ll most likely see in the news in the years to come, lower your sights a bit—think, too, of the judges below the surface who will be controlling the bulk of the cases that are filed. Those judges could just as easily sink the ship of state as those you see.


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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