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Bradley County, Tennessee, pinpointed on an outline of the state and photos of David Fowler with the judge in the December 13, 2018 oral arguments

Will Tennessee Judge Be Crazy Like a (Judge) Fox?

The phrase “crazy like a fox” was popularized by humorist S.J. Perelman’s 1944 book by the same name. It describes a person who looks foolish but is actually very smart or clever. Last Friday, a lot of people may have thought Arkansas Circuit Court Judge Tim Fox looked foolish when he enjoined Arkansas from issuing birth certificates to anyone. At Wednesday’s oral argument on a case pending in Bradley County, Tennessee, the essential question became whether the Circuit Court judge in that case should do the same thing with respect to marriage licenses in Tennessee.

Reviewing the Arkansas Birth Certificate Case

On June 30, 2017, in a case talked about by few other than yours truly, Pavan v. Smith, the United States Supreme Court ruled that Arkansas’ general birth certificate law was invalid because it unconstitutionally allowed a husband to be presumed the father of his wife’s child and did not allow a woman to be presumed the mother of her wife’s child by artificial insemination.

Don’t read that too many times or your head will hurt trying to figure out how a woman could be presumed to be the mother of another woman’s child. But that’s what happens in a Justice Kennedy-controlled Supreme Court where everyone gets to live in the universe of meaning he’s created.

Anyway, after that decision, the Arkansas Supreme Court ordered the birth certificate law “stricken.” Then, it ordered the trial judge, Tim Fox, to “issue such injunctive relief as is necessary” to “ensure same sex couples are assured the same right” to a birth certificate as opposite-sex couples.

But Judge Fox had a problem—there is no law! How does the state issue or record birth certificates for anyone—let alone opposite-sex couples whom the law didn’t cover in the first place—if there is no longer a law at all governing who can get one?

In his order on Friday, Judge Fox said he was “hopeful that the executive branch may have the authority to issue . . . curative executive regulations,” but he left that issue to another day.

As a consequence of the judge’s order, the governor ordered the state to issue birth certificates to all married people. But how can he do that? He is using an executive order to replace a statute, not “cure” one. The separation of powers allows only the Legislature to replace an invalid statute with a new one.

Then the judge said that “if the executive branch does not have the authority” to fix the problem (which he doesn’t if we are all honest), then he said the state is “enjoined”. . . from issuing or recording any more birth certificates for anyone “until such time as the General Assembly can meet, in special or general session, and pass curative legislation.”

Will Tennessee’s Judge Do the Same?

What winds up happening in Arkansas remains to be seen, but this is the very same issue that I argued Wednesday in Bradley County Circuit Court. If our marriage license law violates the Supreme Court’s holding in Obergefell v. Hodges, in which it held that marriage statutes limiting licenses to a male and female were invalid, what is the law in Tennessee? Our statute says that marriage licenses can be issued only to “male and female contracting parties.” Seems to limit marriage licenses to males and females, doesn’t it?

On Wednesday, Tennessee’s attorney general conceded that our marriage licensing statute, if interpreted using the ordinary and natural meaning of the words “male and female contracting parties” would be invalid.

So, the attorney general essentially argued that the word “and” in that statutory phrase should be replaced with an “or” so that “male or female contracting parties” can be issued a license. But hold on; doing that is rewriting the words of a statute, something the courts can’t do, only the Legislature. It is that pesky separation of powers thing.

But, you say, didn’t the governor tell our county clerks to issue same-sex marriage licenses? Yes, but he has no more power to “cure” the problem in our marriage licensing statute than the governor of Arkansas has to “cure” its birth certificate statute.

What will the Tennessee judge do? I don’t know. But I hope he’s “crazy like a (Judge) Fox” and reminds us all, including our governor and attorney general, that only the Legislature can enact a statute to replace or “cure” one that is invalid.

It’s time state judges begin to restore the rule of law that the United State’s Supreme Court subverted in Obergefell and Pavan and the states quit pretending we have laws we don’t have.


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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Lawsuit Challenging Tennessee’s Waiting Period Gains Pro-Choice Firepower

A motion was filed Wednesday seeking to add three plaintiffs to a lawsuit challenging the state’s 2015 law requiring a 48-hour waiting period for women seeking an abortion. Specifically, both Planned Parenthood of Middle and East Tennessee and Planned Parenthood Greater Memphis Region are seeking to be added in addition to the Knoxville Center for Reproductive Health, which will be represented by the ACLU. According to news reports, State Attorney General Herbert H. Slatery agreed to stop enforcing requirements that abortion providers must have hospital admitting privileges and abortion clinics must meet hospital-level surgical standards in April.

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What Newspapers Didn’t Tell You

Thomas Jefferson once said, “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” After being on the inside of state politics for 23 years, I increasingly tend to agree with him. A story in The Tennessean this week is a case in point.

The story related to action taken Wednesday by the House Civil Justice Subcommittee on House Bill 892, dubbed the Tennessee Natural Marriage Defense Act. Thankfully, no other newspaper picked up the story because it so missed the whole point of what took place that those who didn’t read it are better off than those who did.

The heart of the debate centered on an amendment that rewrote the original bill. If you read the article, you would have no idea what the amendment was about.

The amendment is primarily directed at two things: directing state and local officials to obey the marriage license law that requires applicants to be a male and female until a final court order tells them otherwise, and making sure that the state protects them in court if they do.

The story never told you why the amendment was offered. It was because no court has ever ruled on how the U.S. Supreme Court’s same-sex “marriage” decision (Obergefell v. Hodges) applies to Tennessee’s male-female marriage license law.

Many would say, “So? The Court was very clear; laws restricting licenses only to males and females are invalid.” That’s true, but that’s also the point—no one, including our state attorney general, has thought to ask, “If that opinion renders our law invalid, then what is the law?”

This is where an opinion from the attorney general’s office comes in. His office has opined that office holders such as county clerks must obey a law until a court officially declares it unconstitutional.

This opinion makes perfect sense. If every county clerk could decide how to interpret the effect of Obergefell on our law, then, as I told the subcommittee, we would have chaos.

One clerk, following the attorney general’s opinion, could say that the law is still valid until a court rules it is invalid and might only issue licenses to male and female couples.

Another clerk could say there is no marriage license law because Obergefell invalidated it, and the Legislature hasn’t replaced it. And another clerk could decide the Obergefell decision itself somehow “amended” the law to authorize any two people to get a license.

Only a court can “judge” which of those views is correct, and no judge has done so.

So why aren’t county clerks doing what the attorney general said? Why aren’t they following the law until a court tells them to stop? Simple. They will get sued for not issuing a license to same-sex couples, and they will have to defend that lawsuit at the expense of local taxpayers. And that is where the amendment comes in.

The amendment protects all officials who will obey the law. It does so by allowing the attorney general to defend them and, if the attorney general declines, then the state will indemnify that official (and local taxpayers) from any legal fees he or she has to pay and from any court costs if they lose.

That amendment was adopted. Then the subcommittee delayed a vote on the bill, as amended, until next year.

The vote was delayed because two pending lawsuits that I am handling as an attorney (The Tennessean wrongly reported that I was a “party”) may resolve the question of what law, if any, still exists after Obergefell.

However, if over the next few months the Tennessee court system decides it does not want to hear those cases and refuses to determine what the effect of Obergefell was on our law, then we will come back to the bill. And if the bill is enacted, maybe some of our county clerks will muster the courage they need to obey the law and follow the attorney general’s advice to that effect.

If just one county clerk then decides to obey the law, a same-sex couple will sue him or her. But he or she will be defended in court by the state. And the courts will not be able to avoid making a decision in that case on what law, if any, still exists after Obergefell.

What happened in that subcommittee was a significant step toward resolving a huge, unanswered constitutional question left hanging by Obergefell.

If the bill has to be taken up again next year, then opponents will have to address the legal and constitutional question the amendment raises. The focus will not be on whether we should have same-sex “marriage,” but on whether we should uphold the rule of law. That will be a significant change in the nature of the debate.

And now to paraphrase Thomas Jefferson, you are better educated than the person who read the newspaper story.


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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Nashville skyline, Tennessee Flag in shape of the state, and men and women bathroom sign

Looking Good Never Looked So Bad

It pains me to write what follows. And it pains me to say what the silence of the members of the Senate Education Committee said this week about who they wanted to look good in front of when it came to the bathroom bill that would have protected the privacy of K-12 students in our public schools.

What Happened to the Bathroom Bill?

A bill that members of the Senate Education Committee voted 7-2 in favor of last year was before the Senate Education Committee this Wednesday. The bathroom bill would have required schools to ensure that a student could go into a bathroom or locker room knowing that only others of his or her same biological sex were supposed to be in there.

In other words, under the bill, no biological male could use the junior high girl’s bathroom or locker room. Schools were allowed to make accommodations for students who do not “identify” with their biological sex. It was a commonsense bill.

But before anyone could have said, “Let’s keep the Human Rights Campaign happy,” the Chair of the committee ruled that there was no motion or second on the bill. That meant the bill died without anyone even wanting to go on record as to why they couldn’t vote for the bill.

I think I know all the reasons that could have been given for not supporting the bathroom bill. (Click here for a list of reasons given so far and my responses.) I provided every member a lengthy letter addressing every objection I’d heard. And, keep in mind, seven of them had voted for the bill last year.

So What Changed?

What changed was North Carolina. In case you didn’t hear, last year North Carolina’s Legislature valued the privacy and security of their children enough to pass a bill on this topic. And the Human Rights Campaign went all out urging businesses to boycott the state.

But the boycott’s effect was negligible. It cost North Carolina less than 1/10th of 1 percent of its gross domestic product. To put that in perspective, North Carolina thought the privacy and safety of their people was worth losing $1 out of $1,000.

What about the cost to Tennessee, though? The legislative committee that estimates the cost to state taxpayers of proposed legislation said the passage of the bill could result in lost conventions that could cost the state an estimated $300,000 in sales tax revenue. That would affect the state’s General Fund by 2/100ths of 1 percent. That’s like 20 cents out of $1,000.

Given a roughly $1 billion revenue surplus, losing $300,000 of that is nothing.

So what was the problem? It was all the “negative” publicity that would come if the bill became law.

Every article about North Carolina for the last year mentioned the bill its Legislature passed, and the liberal media did its best to leave the impression that folks in the Tar Heel state were homophobic and intolerant.

I think that is what the leaders in our General Assembly and our governor wanted to avoid—looking bad to the rest of the country.

But I don’t think we would have looked bad to everyone else in the country. There are a lot of folks who have looked favorably on North Carolina for what they had the courage to do (and a lot of them live in Tennessee).

However, we would have looked bad to the folks at the Human Rights Campaign and their devotees, if that’s what matters most.

Look Who’s Looking

But if we want to look good, we must be mindful of who is looking and whom we really want to impress by our looks.

In that regard, and taking a long-term view of things, Scripture tells us that God looks down from Heaven and observes all the ways of mankind. And elected officials are forewarned about the seriousness with which He looks upon their actions: “A divine decision is in the lips of the king; His mouth should not err in judgment” (Proverbs 16:10).

God’s judgment in regard to our sexuality is clear—we were made male and female, and we were designated by Him as such based on how we were made, not how we felt. And when our nakedness provoked a sense of modesty, He took the trouble to cover us.

That’s how I think God looks on the subject based on what He’s told us about ourselves. I wonder how we look in His eyes.


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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Flushing Down the Reasons Senators Opposed the ‘Bathroom Bill’

Yesterday, the so-called bathroom bill (SB 771) was not taken up, even for discussion purposes, because none of the nine members of the Senate Education Committee was willing to make a motion to hear the bill. Keep in mind that seven of the nine members voted for the bill last year.

Do not be taken in by the reasons now being given for not supporting the bill. Here are the most popular excuses for doing nothing to protect the privacy and safety of the children in our K-12 public schools. (That is the only group to whom the bill, with an offered amendment, would have applied.)

ARGUMENT 1:

President Trump’s decision to rescind Obama’s policies made the bill unnecessary.

RESPONSE:

This is not true. President Obama tried to take away the authority of the states under Title IX to treat sex as a biological reality, trying to force on them the concept that “sex” in the law actually meant or included  “gender identity.”

Trump’s action only allowed states to decide if they wanted to treat sex as a biological reality for the purposes of bathrooms, locker rooms, etc. But Trump’s decision also left it up to the states to abandon the idea that sex is biological for the amorphous concept of “gender identity.”

The members of the Senate Education Committee essentially said they were okay with local schools choosing to allow students to choose bathrooms and locker rooms based on how they identified, regardless of their biological sex.

ARGUMENT 2:

Not passing the bill keeps the decision in the hands of local schools and out of the hands of federal judges.

RESPONSE:

This is misleading at best and not true at worst. The only way to keep this issue out of a federal judge’s hands is for schools to allow students to choose the bathroom they want to use, regardless of their sex.

Here’s why. When the ACLU or other like-minded group has sued local schools for not letting students choose the bathroom they want to use, it alleges that this is discrimination in violation of the Equal Protection Clause of the U.S. Constitution. That kind of claim means that, if the school loses, it will have to pay the ACLU’s legal fees.

Given these facts, the only way a school system can be assured it will not be dragged into federal court (where a federal judge will decide the issue anyway!) is to let students choose the bathroom or locker room they want, meaning a boy can choose the girl’s bathroom or locker room. To say “no” to that student is to risk being threatened with or slapped with a lawsuit it can’t afford to litigate; schools will capitulate.

That is why a state law was needed—to make sure any lawsuits were against the state and not local school systems.

ARGUMENT 3:

The attorney general “has the back” of school systems if they are sued for a policy that protects privacy.

RESPONSE:

This argument is irrelevant, but it should immediately be noted that it tacitly acknowledges the truth of the answer to Argument No. 2. The attorney general would never have to “have the back” of a school system if it was not correct about the fact that schools are being sued on constitutional ground because of policies that would protect privacy.

But the answer is irrelevant because the attorney general’s authority is established by state statute, and, being the attorney for the state, he or she has no authority to actually represent a school district over a school district policy. The attorney general’s authority in regard to constitutional claims is only “[t]o defend the constitutionality and validity of all legislation of statewide applicability” and “private acts and general laws of local application enacted by the general assembly.” TCA § 8-6-109(b)(9) and (10).

The school district would still have to hire, at county taxpayer expense, its own attorney to defend the lawsuit. Should the school lose in court, the county taxpayers would be the ones having to pay the attorney’s fees for groups like the ACLU that would bring the lawsuit.

There is only one instance in which the attorney general has been given authority to represent a school district, and it is in connection with suits related to “removing asbestos” from school buildings. TCA § 8-6-109(b)(13).

ARGUMENT 4:

The bill had a large fiscal cost to the state.

RESPONSE:

Picture giving up 20 cents out of $1,000, and you will have a picture of what passage of the bill was estimated to cost the state. After colleges were removed from the bill by the proposed amendment, the only cost to the state was an estimated loss of $300,000 in state sales tax. This equals 2/100ths of 1 percent of the amount of the state’s General Fund revenues. Again, that’s like giving up 20 cents out of $1,000.

Would the privacy of your child or grandchild be worth that to you?

Members of the Senate Education Committee:

  • Dolores Gresham, 615-741-2368
  • Reginald Tate, 615-741-2509
  • Todd Gardenhire, 615-741-6682
  • Rusty Crowe, 615-741-2468
  • Steven Dickerson, 615-741-6679
  • Ferrell Haile, 615-741-1999
  • Joey Hensley, 615-741-3100
  • Brian Kelsey, 615-741-3036
  • Jim Tracy, 615-741-1066

See also David’s related commentary, Looking Good Never Looked So Bad


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.

Invite David Fowler to speak at your event