collage showing the Tennessee Capitol, screenshot from the Summer Study, the Tennessee flag, and an elephant

The Elephant in the (Abortion Hearing) Room

The Senate Judiciary Committee’s two-day hearings were the best and most significant hearings I’ve been part of in my more than twenty-five years in state politics. Many statements from pro-life and pro-choice witnesses against the bill deserve comment, because, to the constitutionally untrained ear, they seemed to score great points against the legislation. But all the comments from both sides boil down to one issue that is never discussed. To me, that issue was the proverbial elephant in the room that the party of the elephants can’t avoid.

There were two camps in the room. One, it seems to me, believes in real law and the rule of law enough to argue for it, and the other seems to be focused on politics, either electoral or legal (judicial).

I won’t dwell on those interested in electoral politics—what might or might not happen at the ballot box. In my view, focusing only on politics has brought us to the sorry political mess in which we now find ourselves.

But I am interested in the intersection of law and the rule of law vis-a-vis judicial politics. The Senate Judiciary Committee and the people of this state have to decide between these two approaches to the abortion issue, knowing the legislation enacted in this country for the last 46 years has applied the later approach rather than the former.

The Difference Between the Rule of Law and Judicial Politics


The rule of law approach says that there is a form of law that has a “natural” force in the sense that it bears down upon us and cannot long be ignored or escaped without consequences.

This type of law precedes the positive enactments of legislative bodies and the positive pronouncements of judicial officers. In fact, it is the foundation upon which all human positive law should be based and to which it should conform if the law is to be just.

Martin Luther King Jr. spoke to this kind of law so eloquently in his 1963 “Letter from a Birmingham Jail.” Former Ambassador Alan Keyes spoke to this forcefully and eloquently at the hearing on Tuesday.

The roots of this law, still applied today in any number of common situations, is ancient. For example, consider what Cicero, a Roman statesman and lawyer who, in vain, tried to uphold republican principles in the final civil wars that destroyed the Roman Republic, said:

True law is right reason in agreement with Nature. [I]t is of universal application, unchanging and everlasting; it summons to duty by its commands, and avers from wrongdoing by its prohibitions . . . It is a sin to try to alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. . . . And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all.

Only this kind of understanding of the nature of law allows for a rule of law, because this foundational law is not one made up in a legislative chamber or a courtroom and could have been made up differently.

It was, as Cicero realized, transcendent law in the sense that it is an immutable and universal governing law imposed on us from outside ourselves. In the case of Cicero, it was imposed by the deity he understood as God, and in the case of the United States, it was the Creator referred to in the Declaration of Independence. Some today just refer to it as natural law, also referenced in the Declaration of Independence (“the laws of Nature and Nature’s God”).


One thing required by the rule of law or that is part of what we must mean when we refer to the rule of law is there is a uniformity relative to the underlying principle of law on which human laws are to be built—not one underlying law now and another underlying law later, and not one underlying law in Athens (Tennessee) and another in Rome (Georgia).


This understanding of law carried into American law from our British forebears is called common law. As indicated by the quote from Cicero, the common law was the product of centuries worth of work (and war) relative to those things we had come to understand as fixed, immutable, and true about ourselves as individuals and in society with others.


Law professor Adam MacLeod, an expert in the common law, gave testimony that supported everything I just said. But he also spoke to the three primary ways (indicated by numbered brackets and bold text) in which the common law and the rule of law were reflected in the U.S. Constitution:

The [1] Bill of Rights marks off certain rights as beyond the competence of Congress to alter or abolish [Sounds like Cicero, doesn’t it?]. And much of the Bill of Rights has now been incorporated also against state legislatures through the [2] Fourteenth Amendment. But as the [3] Ninth Amendment makes clear, the enumeration of certain common-law and natural rights does not deny or disparage all the other rights that the American people enjoy by virtue of natural law and their ancient customs. Chief among these is the right to life. An absolute right is one that a person enjoys prior to government, vested in him or her by the laws of nature, simply by virtue of being human.


On the flip side, judicial politics minimizes the import or value of the rule of law and its relation to the U.S. Constitution for the sake of considering only court opinions and how many pro-life or pro-abortion votes may exist on the U.S. Supreme Court.


To disregard judicial politics is foolish, as the pro-life lawyers opposed to the bill repeated ad nausea. Sometimes you know a majority of the U.S. Supreme Court’s current justices don’t believe in the rule of law as it has been described. That’s when you lay low.

What is foolish, however, is making prideful assertions about what the rule-of-law-composition of the Court will be at the time any law enacted now finally reaches that Court. Only God knows that.

Furthermore, judicial vote prognostications have proved unreliable anyway.

Why Didn’t Judicial Prognostication—Justice Vote Counting—Work?

The testimony from one of the two pro-life lawyers against the Ninth Amendment argument told the committee that judicial vote counting had not worked. In 1992, in Planned Parenthood v. Casey, the pro-life lawyers thought that past legal and opinion writing from the justices indicated that Roe would be reversed. However, Justice Kennedy joined two other Republican-appointed justices—O’Connor and Souter—and two other Republican-appointed justices, Blackmun and Stevens, to produce the judgment enjoining the enforcement of pro-life laws there in question. That’s five Republican-appointed justices who turned out “pro-abortion”!

Why didn’t Kennedy or one of these two other Republican justices side with the other four dissenting justices (three of whom were Republican appointees) and overrule Roe?

Justice O’Connor’s opinion, in which Kennedy and Souter joined, gave us a clue:

Coming as [this new litigation] does after nearly 20 years of litigation in Roe’s wake we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.

Let me paraphrase for you what she was saying: “The issue of whether Roe struck the right balance between the ‘state’s interest’ and ‘the strength of the woman’s interest’ was not directly challenged by your legislation. Therefore, we really don’t have to reexamine ‘the soundness’ of Roe, and thus we won’t.”

Judicial Politics Playing Out in Tennessee

Here is how judicial politics played itself out this week. One of the pro-life lawyers against the bill acknowledged that even under the existing 14th Amendment jurisprudence, a good argument could be made that would allow the Court to overrule Roe. It was actually in a national publication by Georgetown University and dedicated to that witness. The witness even said he was writing an amicus brief to that effect, “but,” he said, “I don’t think we have the votes now.”

Not sure I know the value of writing an amicus brief when, as he just told senators, he’s convinced that a majority of justices can’t be swayed by his argument, but here is the larger point: We know how vote counting turned out in 1992 when there were eight Republican-appointed justices on the U.S. Supreme Court but Roe wasn’t directly challenged by a rule of law argument. It didn’t work.

Yet the pro-life lawyers against the bill told pro-life senators that they should continue to use this tactic.

The Republican Elephant in the Room: Judicial Politics or the Rule of Law?

To my knowledge, not one of the pro-life lawyers opposed to the bill testified that the five “conservative justices” currently on the Court don’t care anything about the rule of law.

I actually believe Justices Roberts and Kavanaugh care about the rule of law and will face with integrity a rule of law challenge to Roe.

But that kind of rule-of-law challenge does not exist as long as legislation does not put Roe directly at issue, and we keep arguing, as was done in Casey, within a 14th Amendment jurisprudential framework.

In fact, we know that Kavanaugh said to the U.S. Senate that Roe was precedent, and it is from a strictly 14th Amendment analysis perspective. On that much I agree with the pro-life lawyers who argued against the bill. That’s why I advised Senator Pody to ground the Senate bill in the Ninth Amendment, and then rewrote it that way.

The Ninth Amendment is a means by which to assert the common law and the rule of law but do so in the context of a different constitutional provision. The common law and rule of law reflected in the Ninth Amendment will create a conflict with the arbitrariness of the U.S. Supreme Court’s 14th Amendment abortion and personhood jurisprudence.1

There is a rule of law conflict, because in every area of the law—criminal, tort, and property—the state has the authority to recognize the right-bearing capacity of unborn persons, just not when it comes to one thing, abortion. That arbitrary distinction as to when a known living human being is a person is an offense to the rule of law.

If a Republican legislature isn’t willing to make the Court decide this issue on the basis of the rule of law because it doesn’t think the Court cares about the rule of law either, then heaven help us; we are lawless.

1. This Ninth Amendment line of argument was pejoratively dismissed by one of the pro-life lawyers against the bill as being only “clever.” He even said with prideful audacity that if it were a good argument, then over the course of his 46 years of work on this issue, he would have known about it. Perhaps a focus on judicial politics takes one’s eye off the rule of law and finding arguments based on that. But then, as I warned the senators beforehand to expect, he returned to arguing 14th Amendment jurisprudence as if it controlled and applied to the Ninth Amendment, and he did so in the admitted absence of any case authority to support such an assumption. Professor MacLeod made it very clear that Roe and Casey were not “controlling or binding precedent” for a Ninth Amendment argument, and no one opposed to the bill on either side contradicted his statements regarding personhood under the common law. Being stuck in a 14th Amendment box in which one sees no means of escape and no tools from within to use in breaking out is, indeed, a terrible place to be when one is pro-life.


NOTE: After clicking on each of the links below, in the pop-up window, click on the “Watch this video on YouTube”:

The Arbitrariness and Lawlessness of Current Abortion Law

TN Right to Life’s Paul Linton Responds to Sen. Roberts on SB 1236

Bopp Warns Supreme Court Not Ready to Overturn Roe

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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laughing baby

Shining the Light on Roe v. Wade and the ‘Heartbeat’ Bill Controversy

Next Monday and Tuesday the Senate Judiciary Committee will hear lawyers wrangle over the constitutional defensibility of a so-called “fetal heartbeat” bill. The version of the bill passed by the House is a ‘heartbeat’ bill. Contrary to what you probably believe, the Senate is not considering a ‘heartbeat’ bill. Here is what you need to know.

I will testify in favor of the Senate version of the bill. I did not support the House version of the bill. At the end of this commentary is a picture that shows what I’m talking about, but first, you need a little background history.

A Little History on Roe and Casey You May Not Know

In Roe in 1973, the U.S. Supreme Court said it didn’t know what a person was, so the unborn could not be declared by state governments to be persons in the eyes of the law relative to abortion and protected from abortion from conception. Consequently, the state had only an interest in protecting “potential life” and that kicked in only at some point prior to birth.

This point was called viability, but it did not mean simply an objective determination of the presence of a living human being as opposed to a non-viable or dead one. This would be what we would call a medical diagnosis concerning the existence of a condition, here, a pregnancy and the existence of a second human life.

However, Roe picked a more subjective understanding of viability, something like what we would call a medical prognosis. It meant a subjective determination of the unborn child’s likelihood of survival outside the womb, with or without medical technological assistance.

What was particularly galling to the pro-life crowd was that Roe said the state had no interest in protecting human life until then, and thus, could not regulate abortion at all during the first trimester.

Then in 1992 in Casey, five justices could not agree on the constitutional reason for enjoining enforcement of the abortion regulation there in question. That, by itself, should tell you something about the soundness of the reasons given for the judgment in Roe.

The conflict among the five was that, contrary to Roe, three of the justices—O’Connor, Kennedy, and Souter—thought the state had a “substantial interest in potential life throughout pregnancy.”

Here is what this looks like:

Roe's framework flowchart

The Particular Problem with the House Bill

Unfortunately, the House bill accepts the reasoning of Roe and Casey that the state’s interest is only in potential life and not from the point at which that life is known to exist. It also accepts the reasoning in Roe and Casey that a subjective prognostic determination of viability should continue to be used.

The only real difference between Roe and Casey and the House bill is that the House bill says that the prognostic meaning of viability should be based on when a heartbeat is detected, not on when the unborn child can survive outside the womb. The argument is that once a heartbeat is detected, the unborn child, if not aborted, will survive to term and become a person in the eyes of the law.

Basing an abortion law on the detection of a heartbeat has good political optics and makes for a great bumper sticker—“Abortion Stops a Beating Heart”—but to simply say to the U.S. Supreme Court the prognostic meaning of viability we want you to use is better than yours is to ask the Court to substitute one subjective prognostic measure for another. And it seems rather arbitrary to say one is better than another except that one will save more lives than the other.

Of course, I support that end result, but in my view, agreeing to the legal logic of Roe and Casey makes it easy for the Court to apply Roe and Casey to the House bill. Reversal of Roe under those circumstances will look like the only thing that changed was the composition of the Court, something that makes Justice Roberts ill and will make Justice Kavanaugh nervous.

What’s Good About the Senate Bill

I like that the Senate bill confronts the Court with the legal foundations of Roe, which no legal scholar thinks was sound, and makes them justify it. It rejects the subjectivity of the Roe/Casey viability standard and says that abortion is prohibited once it is objectively determined that a life exists, which may be prior to the detection of a heartbeat. Human Growth Hormone levels may indicate the existence of a living human prior to then.

But what I really like is that the Senate bill is unique and different from the ‘heartbeat’ bills passed in other states in one very important regard. It puts forward a constitutional basis for the law that has never been before the Court, namely, the state’s power, implicated by the Ninth Amendment, to protect those “other rights” referred to in the amendment and not already “enumerated” in the Constitution.

What Are Those Other Rights and Where Do We Find Them?

Law professor Adam MacLeod, a friend of mine, will testify on Monday that those other rights can be found in the common law, those “laws” that derive their “force” among us not from legislative enactments backed by the power of the sword, but from such a long course of development over centuries that we know them to be true and real.

One of those was the right to life, and the common law recognized that the child in the mother’s womb was treated as a person for any number of purposes, just as we still do in every area of law but abortion.

The Ninth Amendment envisions that government, created to secure our rights, could continue to make secure our rights even if not enumerated in the Constitution as such.

Basing the proposed law on the Ninth Amendment creates a collision course between the Ninth Amendment and the 14th Amendment.

No court has ever had to render a judgment on this conflict; therefore, no opinion has ever been issued to tell us how that conflict should be resolved. So, any lawyer who tells you the opinions in Roe and Casey are controlling because the issues are the same is just wrong. The issues are not the same. So I will urge the Senate to adopt the amended Senate bill or one like it.

In my view, it’s time to make the Supreme Court decide what it has not been required to decide for 46 years. The science of prenatal life is now on our side. The law has always been on our side, and abortion’s view of the person has become increasingly isolated from and inconsistent with the rest of legal reality regarding prenatal life.

The truth we always knew was suppressed in Roe to reach a politically desired result. It’s time to bring the truth into the light.

flowchart of how House and Senate view Casey


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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Picture of Joshua Harris' I Kissed Dating Good-Bye book and image of a cross

My Joshua Harris Moment and the Challenge of Christian Cultural Engagement

This week, Joshua Harris, a preacher who rose to prominence within certain segments of Christianity through his book I Kissed Dating Goodbye, has now said, “By all the measurements that I have for defining a Christian, I am not a Christian.” I honestly think I get where he’s coming from because of my own experience. I also think his admission directly bears on politics and culture in Tennessee and our country.

My Personal ‘Joshua Harris’ Testimony

I do not know Joshua Harris, and so to say I know where he’s coming from is admittedly presumptuous, but this comment by him bears on my own journey over the last couple of years. I was a “good kid” growing up. My moral compass was pretty straight. By “all the measurements that I [had] for defining a Christian,” I was one.

Then in law school I heard for the first time about the Lordship of Jesus Christ, and it added a new dimension by which I could “measure” my Christianity. Now an even greater reason for “being good” was introduced.

About 14 years ago, I found myself in a pew at the end of a Sunday evening service quietly sobbing into my hands and repeatedly muttering, “I’m just so tired.”

Life is a journey, but over the course of the last 14 years I have learned what might be shocking to many Christians: A Christianity understood as and measured by what I do is exhausting, and it is not the gospel.

Yet, I suspect my old perception of Christianity reflects the tenor of much of what passes for evangelical preaching today with its emphasis on three steps to having this in one’s Christian life and five steps to having something else. Preaching with that kind of tenor is what Christians even as recently as 100 years ago would have called legalism. To avoid Christian jargon and hopefully spark discussion, I’ve started calling it “Christian moralism;” it is “having a go” at reforming one’s moral values by personal willpower.

The End of ‘Christianity’?

Legalism or Christian moralism easily slips into Christianity because it appears to be a good antidote to and a means of inoculating Christians against the heresy of antinomianism, which means literally “against law.” It goes something like this: If legalism is bad, then antinomianism is worse!

Antinomianism is the “safe harbor” for those who don’t want to give up their basic belief in God and want to satisfy a felt need to “be right with God.” It is a belief that the gospel frees people from strict adherence to the moral law of God. Antinomianism allows the person to continue in the sin that legalism insisted he or she give up but by will power could not be done, and think he or she will be forgiven anyway because God is a God of love.

What’s ironic is that the tenor of the Apostle Paul’s preaching against legalism resulted in him being accused of antinomianism!

We know this by the fact he spent time in his letter to the Christians in Rome anticipating the charge that the gospel he preached was antinomian.1 In fact, Dr. Martin Lloyd Jones once said of Paul’s letter, “If your presentation of the Gospel does not expose it to the charge of Antinomianism you are probably not putting it correctly.”2

Even as legalism left Judaism in tatters when the gospel came in the form of Jesus Christ and the Temple was soon destroyed, I won’t be a bit surprised if the legalist spirit so often associated with Christianity will soon leave the words “Christianity” and “Christian” in tatters, too. I think the growing malaise toward and outright contempt for “conservative Christianity” is evidence of this trend, and more of the same won’t help.

The ‘Solution’ to Legalistic and Antinomian Christianity

Legalism and antinomianism both miss the point of the gospel, which, at the core, is God implanting a spirit or principle of life into a person so that normal human faculties (intellect, will, etc.) are redirected toward an affection for God and the glory that is God.

This is what Thomas Chalmers, the great Scottish preacher and cultural reformer, said on this matter, and I believe it bears directly on why Christians in political office and many Christians who support them seem to be so weak and unwilling to support laws that go against the current cultural flow of things:

To bid a man into whom there has not yet entered the great and ascendant influence of the principle of regeneration, to bid him withdraw his love from all the things that are in the world, is to bid him give up all the affections that are in his heart.

In other words, the world and that which is in it or a part of it is all there is for those who lack this principle of regeneration. And who will give up any affection that may be found in what this world has to offer unless it is replaced with a greater affection? No one.
To expect that is to expect the person to cease being human. That’s why Chalmers described the gospel as “the expulsive power of a new affection.”

How Joshua Harris ‘Connects’ to Christian Engagement in Politics and Culture

Here, then, is how I see Joshua Harris’ renunciation of Christianity relates to politics and culture:

When we as Christians in political office and Christians who are interested in the laws that politics produces and are concerned about our nation’s moral slide, allow this new affection for God and the glory of God to displace the greater affections we might have for office, influence, power, reputation, or possessions, then I suspect we will see a change in our country’s direction away from bigger civil government and away from a liberty that has turned to licentiousness.

Legalism and antinomianism both lead to death. The fact that many conservative Christians, I among them, think our nation is dying should speak to us about how we might have contributed to its condition and what first must change about us if the change we desire for our nation is to ever come about.

For further reading
The Whole Christ: Legalism, Antinomianism, and Gospel Assurance―Why the Marrow Controversy Still Matters by Sinclair Ferguson.


  1. Romans 6:1,15.
  2. “If your presentation of the Gospel does not expose it to the charge of Antinomianism you are probably not putting it correctly. . . . What do I mean by that? Just this: The Gospel, you see, comes as this free gift of God–irrespective of what man does. Now, the moment you say a thing like that, you are liable to provoke somebody to say, “Well, if that is so it doesn’t matter what I do.” The Apostle takes up that argument more than once in this great epistle [to the Romans]. . . . You see–what is not evangelical preaching is this: It’s the kind of preaching that says to people, “Now, if you live a good life; if you don’t commit certain sins; and if you do good to others; and if you become a church member and attend regularly and are busy and active you will be a fine Christian and you’ll go to Heaven. That’s the opposite of Evangelical preaching–and it isn’t exposed to the charge of Antinomianism because…it is telling men to save themselves by their good works…And it’s not the Gospel–because the Gospel always exposes itself to this misunderstanding from the standpoint of Antinomianism.”

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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Bernie Sanders at a political rally and dollar bills

Sanders, Tlaib, and the Minimum Wage

U.S. Senator Bernie Sanders, a socialist, says the minimum wage needs to be raised from $7.25 to $15 (though he’s unwilling to allow his employees to increase their gross income as a result!) and then U.S. Representative Rashida Tlaib wants to raise him $5 to $20. What are we to make of this?

The fundamental question being raised by the Democratic Party is whether our governmental system that allows for free enterprise or capitalism has run its course and new structures are needed for American society.

The Pope Joins the Democrat’s Conversation

Even Pope Francis has raised this question (and I’m sure some protestants have as well, perhaps Ron Sider and Jim Wallis). In 2013, in Evangelii Gaudium, the pope wrote,

Some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naive trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system. (emphasis supplied)

The solution, according to a growing number in the Democratic Party, is a change to socialism, beginning with the government fixing wages and profits by various means.

Ironically, this solution relies on that which the pope used to question free markets with only a twist at the end, namely, “a crude and naïve trust in the goodness of those wielding [the] power [of the sword].”

One greedy person might harm me economically, but a greedy person wielding the power of the law’s sword against me is worse!

What the Pope Got Right

To his credit, however, Pope Francis did get right a part of the real problem. In 2015, he said,

Behind all this pain, death, and destruction there is the stench of what Basil of Caesarea called “the dung of the devil.” An unfettered pursuit of money rules. The service of the common good is left behind. Once capital becomes an idol and guides people’s decisions, once greed for money presides over the entire socioeconomic system, it ruins society, it condemns and enslaves men and women, it destroys human fraternity, it sets people against one another and, as we clearly see, it even puts at risk our common home.

Are Republicans Exacerbating the Drive to Socialism?

Sadly, from what I see, too many in the Republican Party, even in Tennessee, don’t have the solution, either.

Too often nowadays we see legislation that promotes the common good found even in good old common sense, let alone the Bible—e.g., boys are boys and girls are girls, and the two should not undress in shared locker rooms—go down to defeat because of fears it will lead to a boycott that will hurt our economy. That is exactly what happened in the Republican-controlled Senate this past session.

So, while Republicans by and large still support an economic system that allows for liberty in our private economic relations, it’s ironic that its almost exclusive emphasis on material prosperity does foster the “destruction of human fraternity” that leads to calls for socialism.

What Lies at the Root of the Socialism Problem

The drive toward socialism is rooted in two things, the first of which the pope mentioned, greed. But greed is most often spawned by lack of contentment with what one has or one’s station in life. Any solution must address both of these root issues.

The problem is that these are matters of the heart, which law and politics can only deal with clumsily at best.

That’s because God alone has jurisdiction over the human heart, and it is therefore God alone who can fix it. But do Christians who profess belief in God understand what it is about the God reveled in their Bible that provides the fix?

The Solution to the Real Root Problems

The biblical fix is rooted in two major things. First, a belief that all of humankind exists and continues to exist at every moment in time only by virtue of an omniscient, omnipresent, and omnipotent God. It is because of these beliefs about God that we believe Him to be sovereign and the Author of a transcendent law that He has imposed upon all His creation. Second, the fix is rooted in a Heavenly Father, who by an incredible act of condescending love, willingly cloaked His glory in the human flesh of His Son, Jesus Christ, in order that we, in the fragility of our human condition, might have some present comprehension of that and give us now a foretaste of knowing and experiencing that glory someday in fuller measure.

If these two things are true—and I believe them to be—then they provide a true, objective basis for us, subjectively as individuals, to have a real and true sense of equality and fraternity. As Abraham Kuyper said during his 1898 Stone Lecture presentation to seminarians at Princeton, this view of God and man “places our entire human life immediately before God.”

From this, he said,

It follows that all men or women, rich or poor, weak or strong, dull or talented, as creatures of God, and as lost sinners, have no claim whatsoever to lord over one another, and that we stand as equals before God, and consequently equal as man to man.

Hence we cannot recognize any distinction among men, save such as has been imposed by God Himself, in that He gave one authority over the other, or enriched one with more talent than the other, in order that the man of more talents should serve the man with less, and in him serve his God. . . .

It condemns not merely all open slavery and systems of caste, but also all covert slavery of woman and of the poor; it is opposed to all hierarchy among men; it tolerates no aristocracy save such as is able, either in person or in family, by the grace of God, to exhibit superiority of character or talent, and to show that it does not claim this superiority for self-aggrandizement or ambitious pride, but for the sake of spending it in the service of God. (emphasis supplied)

Herein lies both a reason for contentment and a rebuke to greed. After all, “Godliness with contentment is great gain” (1 Timothy 6:6, KJV, emphasis added).

Those who attain to such wisdom will find it “better than rubies, and all the things that may be desired are not to be compared to it” (Proverbs 8:11, KJV).

Now if only I, and all the other people who profess biblical Christianity, would heed these words, live them, and then proclaim them.

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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hands of husband and wife showing wedding rings

Constitutionality of New TN Marriage Law and Personal Repentance

The other week I read in The Tennessean that the state’s lawyers did not satisfy a federal district court judge’s demand that they provide a “rational basis” for a new Tennessee law that bans ministers with online ordinations from performing marriages. To be honest, there really isn’t one. And that conclusion leads me to make public a personal confession I wrote to myself on April 26 of last year.

The Reason the ‘Online’ Minister Restriction Is Irrational

The reason there is no rational basis for prohibiting solemnization of a state-licensed marriage by a person whose “ordination” is granted via online submissions is that there no longer is any rational basis for state-licensed marriage itself.

The U.S. Supreme Court’s analysis in its 2015 Obergefell v. Hodges decision rejected the normative nature of marriage as male and female, which was based on a normative belief in the complementarity of two biological sexes.

But Obergefell treated marriage as a social construct, something we make up, instead of a real thing that civil laws only recognize and, in certain regards, regulate. According to Obergefell’s rationale, we can structure what it calls marriage any way we want, though only within such limitations as are permitted to us by a majority on the Court.

So, if marriage is not an objectively real thing, but something we make up and write into statutes, why does it need to be solemnized in the first place?

What about the objective nature of marriage can the state then protect from destruction or misuse by its licensure laws, other than perhaps minors who might marry without wisdom and parental approval? But the protection of minors doesn’t rationally require that the person overseeing the exchange of relational intention be ordained in a certain way or by a certain means.

Rationality is reason. Reason is the means by which we argue to valid or invalid conclusions from certain premises. So, if the premise is that marriage is a made-up thing, why can’t the qualifications for ministers as state-sanctioned marriage officiants be a made-up thing, too?

Let’s “get real” for just a moment—there can be no rational basis for the law in light of Obergefell’s rejection of objective realities regarding the nature of men and women

My Confession as a Christian Who Practices Law

Given that, what I wrote to myself on April 26, 2018, is relevant. It summarized my heretofore private reflections drawn from two books I’d finished reading, Joseph Story and the American Constitution and Idol’s for Destruction, and I hope it is helpful to others who are trying to make sense of what’s happening in law and our culture.

Charles Warren once wrote that we needed to:

[r]ecall that the words written by old George Mason of Virginia into the first Bill of Rights in this Country are still true, that: “No free government or the blessings of liberty can be preserved to any people but by . . . frequent recurrence to fundamental principles.” Our political system will break down, only when and where the people, for whom and by whom it is intended to be carried on, shall fail to receive a sound education in its principles and in its historical development illustrating its application to and under changing conditions.

Lord, as I was thinking about what I’ve learned post-law school about the “fundamental principles” upon which our law and Constitution were constructed compared to how we “do law” or think of law today, I can’t also help but think of what Herbert Schlossberg wrote in Idols for Destruction, “Idolatry in its larger meaning is properly understood as any substitution of what is created for the creator.”

If that is so, then by acquiescing without objection and challenge to the modern-day U.S. Supreme Court’s fundamental jurisprudential philosophy, have I not engaged in a form of Godless idolatry? Have I effectively been bowing down to man by accepting the positivistic view of law that now prevails in that sphere in which I work?

Oh, Lord, I can say as a matter of self-righteous justification that I have at least objected to the particularities of the jurisprudential reasoning employed in particular cases, like abortion. But still, I have effectively accepted an understanding of the nature of jurisprudence that is itself idolatrous in its exaltation of man as its source and in its reliance on sovereign human reason in place of reason understood in light of God’s Word.

How have I done that? By arguing in the past about the constitutionality of various pro-life legislative proposals only within the positivistic framework of law. How convenient to those who are opposed to having You over them that I was willing to limit my thinking and my arguments to the rules of positivistic law under their control and that they determine.

The bottom line, though, is that I confess I have lost sight of the bigger picture of what was happening in jurisprudence, because I was deceived into thinking of this process of change in the law from a biblical basis to a humanist, man-centered basis as only “secularization.”

It is, indeed, secularization, but, as Schlossberg writes, this “conveys only the negative aspect [of secularization]. The word connotes the turning away from the worship of God while ignoring the fact that something is being turned to in its place.Id. (emphasis supplied). I have put a positivistic, man-grounded, and man-centered view of law in place of that which is found in You as the Creator of all things.

My conclusion is this: I have been laboring for years in the “temples” of a false god, operating according to its theology without giving one thought to the matter of a reformation of the foundations of law itself. From that idolatrous thinking, I now repent.

Having Confessed, What Now for Me?

Having repented of arguing legal matters within a strictly positivistic, human-centered legal framework, I now have to confess that if I were to agree to operate within that framework, the online ordination law is irrational.

It can really only be rational if we return to a belief in an objective understanding of male and female complementarity and a belief that immaterial realities extend beyond such things as gravity to such a thing as marriage.1

That eventual re-formation is my goal and that explains why I cannot let go of challenging Obergefell and policies that deny the complementarity of the two sexes. For me to do otherwise would be idolatry.


  1. This is not to equivocate on my earlier opinion that we need to do away with state licensing of marriages for an alternative means by which a marital relationship can be recognized in Tennessee. I mean only to say that a licensing law could be “rational” to ensure that those making a commitment to undertake the solemn obligations and responsibilities of a martial relationship understand the gravitas of that commitment by making sure that those who solemnize the commitment have a certain level of gravitas behind their credentialing.

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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