Husband and wife holding baby shoes

Will Legislators Take a Consistent Approach to Abortion and Marriage?

Three bills filed in the General Assembly—two on abortion and one on marriage—point out how hard it is to find a consistent principle by which to govern. Here’s what I think needs to be done.

Two Approaches to Reversing Roe v. Wade

The two abortion bills would make it a crime for a physician to perform an abortion except in limited circumstances. All the legislative sponsors of the two bills want to see Roe v. Wade and its progeny overturned and authority of abortion matters returned to the states.

One bill is called the fetal heartbeat bill because it would make the criminal sanction and the limited exceptions thereto applicable once a child’s heartbeat is detected. The other bill would make the sanction applicable only after the U.S. Supreme Court “overrules, in whole or in part, Roe v. Wade” and its progeny, “thereby restoring to the states their authority to prohibit abortion.”

The fetal heartbeat bill seeks to push for a reversal of Roe by imposing a limit on abortion greater than any the U.S. Supreme Court has had to rule on in the past. The hope is that the new law will provoke a lawsuit that will, in time, wind its way to the U.S. Supreme Court and arrive at a time when the Court is willing to reverse Roe.

The second bill, known as a “trigger law,” imposes a limit on abortion only if the law of some other state is challenged and the decision, in that case, results in Roe being reversed.

There have been times when I thought the second approach was the only plausible approach. The Court was decidedly more liberal than it is today, the popular culture was not as pro-life as it today, and legislative bodies were not applauding infanticide legislation that outrages the sensibilities of an overwhelming majority.

If you think public sentiment can’t influence justices, then pretend you didn’t ever hear Justice Ginsburg say she thought America was now ready for same-sex “marriage.”

Pushing the Envelope on Roe

While the “trigger law” should be passed, these changes in the court and public sentiment have led me to think it’s also time to push the envelope and precipitate a situation that will require the U.S. Supreme Court to re-evaluate the constitutionally unsupportable rationale employed 40 years ago to support the decision in Roe.

Of course, the Supreme Court may continue to uphold the right to abortion, but it is very unlikely the Court will go in the direction of making it harder for states to enact abortion laws. The standard by which the constitutionality of abortion laws are now judged—Does the law unduly burden abortion?—is as low as it can go without the Court reducing the standard to the lowest possible standard—Does the law have a rational basis?

So, at this point, I don’t see much to lose other than simply losing. But not to try is a de facto loss anyway.

But notice this: Neither abortion bill seeks to “nullify” the Supreme Court’s rulings on abortions or tells prosecutors to ignore those rulings and prosecute abortionists anyway. Legislators know they can’t just ignore a bad decision by the United States Supreme Court.

Moreover, the fetal heartbeat bill is a testament to the fact that legislators know they must come up with some approach to abortion that has not been tested and ruled on yet in order to get a case back to the U.S. Supreme Court.

Legislators know that a bill treating Roe as a nullity would be slapped down as unenforceable by a federal district court and the decision upheld by the U.S. Court of Appeals for the 6th Circuit faster than Gov. Bill Lee can say to the state’s Treasurer, “Please pay the Planned Parenthood’s legal fees for having to sue our state.”

If legislators really believed they could nullify and ignore a U.S. Supreme Court opinion, surely legislators in our state would have done so any number of times between the 1973 Roe decision and now.

How This Applies to Marriage

But the reasons that lead legislators to look for ways to work around Roe and not just ignore it apply with equal force to the new bill on marriage.

That bill says, “No state or local agency or official shall give force or effect to any court order that has the effect of violating Tennessee’s laws protecting natural marriage.” Thus, it’s a bill purporting to “nullify” the U.S. Supreme Court’s constitutionally unsupportable decision on marriage in Obergefell v. Hodges, and it just won’t fly.

That’s not to say that nothing can be done about Obergefell. But the same principled approach to it must be taken as is being taken with the fetal heartbeat bill. I’ve been working on that principled approach and that work is almost done. Stay tuned.


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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Official photo of Trump, Trump at the State of the Union address, and Bernie Sanders at a DC rally

‘Born Free,’ ‘Truly Free,’ and Other State of the Union Myths

President Trump went off his printed State of the Union speech Tuesday night and said, to Republican applause, “America was founded on liberty and independence and not government coercion, domination, and control. We are born free and we will stay free.” Senator Bernie Sanders’ response proposed a different vision of liberty and freedom. Which one, if either, is true?

Senator Sanders’ Response

In response to “we are born free, and we will stay free,” Sen. Sanders tweeted, “People are not truly free when they can’t afford health care, prescription drugs, or a place to live. People are not free when they cannot retire with dignity or feed their families.”

Sanders’ vision of freedom is grounded in human right or entitlement, but unlike the “airy metaphysical notions . . . started by fanciful writers upon this subject”1 like Frenchman Jean Jacque Rousseau, Sanders gave specifics: health care, food, and housing.

Sanders, though, was building on Rousseau, who famously said, “Man is born free, and everywhere he is in chains.”2

According to Rousseau and his disciple, Sanders, whether he is such consciously or subconsciously, society and its unjust social structures are the sources of man’s chains and the solution is to understand society as a freely entered into social compact or contract among all the citizens. (Sound like familiar civics?)

Sanders’ Compulsion-Is-the-New-Freedom Theory

What often goes unnoticed by most social contract advocates, Democrat and Republican alike, is the consequence of this theory.

Rousseau rightly noted, as would Sanders, that “each individual [may], as a man, have a particular will contrary to or different from the general will he has as a citizen.” So, “in order that the social pact may not be an empty formula,” the social contract “tacitly includes the commitment … that anyone who refuses to obey the general will shall be compelled to so do by the entire body.”

While being compelled by the “entire body” to do that which one doesn’t want to do doesn’t sound like being “free,” Rousseau explains, “[T]his means . . . that he will be forced to be free” because it “protects him against all personal dependence.”

If forced to be free doesn’t sound quite right to you, then that’s a good thing. It’s just plain rubbish.

Is Trump’s ‘Born Free’ Theory Any Better?

While it is not my intent to pick on the President because of one ad-libbed statement about man being born free, it is worth looking at the worldview that counts it as a truism and greets it with great approbation. “Born free” may look great on a bumper sticker and make for a great lyric to a 1960s song sung by Andy Williams, but it’s not so good as a theory of man upon which to organize society. Rock band Steppenwolf took the “born free” cue to blare out this line: “Like a true nature child, we were born, born to be wild.”

That’s why one of the other fanciful writers on airy metaphysical notions, Thomas Hobbes, said “the life of man” in his natural state “is solitary, poor, nasty, brutish, and short.”3 “During the time men live without a common power to keep them all in awe,” they live, he said, “in that condition called war; and such a war, as if of every man, against every man.”

But note: This “born free” theory—“diversity on steroids”—requires a “common power” to prevent chaos, which is where we’re headed with our penchant for a diversity that will not discriminate between the good and the bad. And that leads back to Sanders and his compulsion-for-the-love-of-the-greater-common-good theory of freedom.

The Only Theory of Freedom That Could Work

So, if Sanders’ and Trumps’ theories of freedom both lead to government compulsion in the end (and note that their theories aren’t “new”), then what theory could work?

I submit that there is one. It’s actually even older, but it was foolishly rejected because it didn’t promise enough freedom.

That “theory” says God created man and woman in God’s own image, gave them dominion over the earth, and on their heart He wrote His operating instructions. There was only one restriction—that they not eat of the fruit of one particular tree (Genesis 1:26–31; Romans 2; Jeremiah 31:33; Romans 2:14–15).

That tree, though beautiful and good for food, was, we might say, a sacramental reminder to them that their liberty was not absolute but was under God.

But what liberty it was! The fruit from all other trees in the garden were theirs to eat, the non-garden part of the creation was their “playground” to explore and develop for the glory of their Creator, whose joy was their greatest joy, and, when the day was done, they could retreat to the garden to enjoy fellowship with their Creator.

But they were deceived into thinking their Creator was not good because they could not “eat of every tree of the garden (Genesis 3:14). And they couldn’t. They were not absolutely free; they were not free of God.

So, they rebelled to pursue their own freedom, make up their own rules, and develop their own operating instructions. And ever since, humanity has been trying to come up with a better theory for obtaining the greatest human freedom possible without either chaos or compulsion.

The Gospel, in short, is the merciful and gracious means by which God is working to restore what was lost, to in time make all things new (Revelation 21:5; Isaiah 66:22).

Where the Theories Lead

If we’re honest with ourselves, in those nations where people have had the greatest freedom to live out that Gospel—the Dutch Netherlands, England, Scotland, and America—freedom developed over time, and this despite the many, and often grave, shortcomings of those who sought to live it out.

But, today, America sits as a nation that has rejected the Bible and the Gospel as its basis for freedom and liberty.

Sadly, all Christians, myself included, have at times provided the ready justification a non-Christian was looking for to set off in search of freedom and liberty apart from God by their moral failures and sometimes faulty application of biblical principles to the problems of their day.

That truly breaks my heart5 because the search for freedom apart from God will end, as it has since the beginning, in the loss of freedom and eventually death both for the individual and for any culture in which those individuals are the dominant force.

As my pastor frequently says, “God have mercy. Church have courage.”

NOTES

  1. William Blackstone, Commentaries on the Laws of England, The Second Book. Of the Rights of Things, Chapter 1: Of Property, in General.
  2. Jean Jacque Rousseau, On Social Contract or Principles of Political Right.
  3. Thomas Hobbes, The Leviathan.
  4. The King James rendering quoted here is good because it is a more literal rendering of the question asked by Satan and parallels the expansive permission to eat from “every” tree of the garden but the one. It would have been too obvious an assassination on the goodness of God’s character to suggest to Adam and Eve that He had prohibited them from eating of “any tree” of the garden. But to suggest that God had withheld something from them, even if only one tree, was to put doubt in their minds as to the liberality of His goodness.
  5. The Christian who is only angry and not brokenhearted needs to read and study the writings of “weeping prophet” Jeremiah and repent of their Jonah heart. Sadly, that, too, has too often described me in the past.

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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Gov. Andrew Cuomo delivers remarks at the start of the Little Neck Douglaston Memorial Day Parade on Monday, May 26, 2014.

Has Evangelicalism Unwittingly Aided Cuomo and NY’s Abortion Law?

Many in Tennessee and across the nation are appalled at the callousness toward human life underlying the abortion-to-the-moment-of-delivery law passed by New York’s legislature and praised by Gov. Andrew Cuomo. But does today’s version of evangelicalism have a good basis upon which to object?

What makes me ask the question is the statement Gov. Cuomo made about how he, as a Catholic, could support the law:

I have my own Catholic beliefs, how I live my life … That is my business as a Catholic. I don’t govern as a Catholic. I don’t legislate as a Catholic.

Before any Protestant heaps scorn on either Gov. Cuomo’s views or the theology of the Catholic Church, a little self-examination is in order.

Catholic theology, as I understand it, has tended to see God’s grace as bringing a donum superadditum to nature, a gift (of grace) added on top of the natural creation instead of a gift (of grace) that restores and renews a fallen and corrupted creation. This is a form of dualism that distinguishes between the natural order of things, often called the “secular” realm, and the spiritual realm. That’s what I think Gov. Cuomo was describing.

But is this dualism not also rampant within much of what we today call evangelicalism?

The Scriptures about the Christian setting his or her mind on heavenly things, keeping himself or herself unspotted from the world, and Christ’s Kingdom not being “of this world” have been interpreted by many of today’s evangelicals to reflect a dualism not unlike that which I described.

Today a number of evangelical Christians abandon the “secular realm” as “worldly,” “profane,” and “secular” for “spiritual” pursuits like Bible reading, prayer, and faithful church attendance, not even realizing they are disconnecting the Bible from anything other than the inner spiritual world of the individual and the petition that God’s Kingdom “come and His will be done on earth as it is in heaven” from the Lord’s Prayer. Sure, Christians everywhere recite that prayer, but many spiritualize the “Kingdom come” to the point it has no present earthly meaning.

Many strains of modern evangelicalism have effectively washed statements in the Bible like those noted above through a thoroughly Platonic view of reality, which saw the material world as less good than the immaterial (spiritual) world. This kind of view of the world, when joined with a belief that the salvific work of Jesus Christ was limited to an internal spiritual-only redemption of the individual, would certainly justify a “Protestant” version of Gov. Cuomo’s statement!

Christians need to reject this false dualism. Those who do and who engage the culture (and its politicians) do not see themselves as “polishing the brass on a sinking ship,” a statement attributed to a noted 20th-century evangelist.

Rather, they see themselves doing what Adam was first called to do in Genesis. As descendants of the second Adam, Jesus Christ, (1 Corinthians 15:45), they work toward and look forward to a final consummation of all things that will bring about a new heaven and earth, one that will be fully restored from the effect of Adam’s sin.

Evangelical leaders who insist on a Platonic, dualistic view of the world and see grace as just an add-on to life to help them hang on until they can escape to heaven better expect more of their ranks to join with Gov. Cuomo over time.

After all, it will be “good news” for them when they realize their “brand” of evangelical theology will allow them to go along with the world and avoid being labeled intolerant, backward, and uneducated so long as they don’t personally have an abortion and just believe in their heart that abortion is wrong.


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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Illustration of Dr. Martin Luther King Jr., map of the border wall at Mexico, the medical symbol, and photo of Bill Lee

Gov. Lee Passes First Hard Policy Test

On Monday, Governor Bill Lee attended an event honoring the legacy of Dr. Martin Luther King Jr. I know how hard it was for Gov. Lee to do what he did when the keynote speaker gave his address. In my eyes, he passed his first hard policy test as governor. And Dr. King might have understood the true nature of the test he passed.

Lee Takes the Road Less Traveled

It is really hard for a politician to attend an event at which there is a good chance his or her policy views will not be welcome, and harder still to stick to them when they are put to the test at the event.

I know from experience. I vocally supported school vouchers during my Republican primary race for state Senate. Soon after I was elected senator, I was asked to attend a Parent Teacher Association meeting in my district. I knew that PTAs did not support vouchers, but I went because I represented the people that were there. Sure enough, I was asked about my position on vouchers. I gave the same answer I gave on the campaign trail.

Likewise, Gov. Lee had to know that some of his policy positions would not align with those hosting the King event. But he went. He is the governor of those in attendance. He said he intended to honor Dr. King’s legacy on civil rights.

The Keynote Speaker’s View on Honor and Love

At the event, the keynote speaker, Rev. Dr. William Barber, seemed to equate honoring Dr. King with “loving” him, but worse yet was his equating love for Dr. King with agreement with every public policy Dr. King supported (or might have supported had he lived). That is logical rubbish.

I have honored people with whom I have had some strong disagreement on particular issues, and I love people with whom I, at times, have strong disagreement, such as my wife.

‘Loving’ Dr. King Means What?

Then, the keynote speaker compounded his mistake by equating love for Dr. King with support for government-directed universal health care and opposition to a wall as a means of border security.

Making that leap in logic was, of course, the speaker’s prerogative, but he went from speaking his mind to taunting Gov. Lee. After looking at Gov. Lee, he asked all those who agreed with him on health care and border security to stand.

I have no doubt that Dr. King would have remained seated had he been at an event where the speaker asked those in attendance to stand for policies Dr. King thought wrong. So, for Gov. Lee to have stood, given his clearly articulated policy views, I think he would have dishonored Dr. King’s legacy of principled action even in the face of hostility.

But why might Gov. Lee disagree on these policy positions (assuming they really are those of Dr. King) and would Dr. King have still respected Gov. Lee despite that disagreement?

Lee and King on Universal Health Care

As to universal health care, Gov. Lee acknowledged in his inaugural speech on Saturday, “Too few Tennesseans have access to health care that they can afford.” But, unlike the keynote speaker, Gov. Lee believes civil government has a limited jurisdictional authority. He went on to say in his inaugural speech:

Government is not the answer to our greatest challenges. Government’s role is to protect our rights and our liberty and our freedom. I believe in a limited government that provides unlimited opportunity for we the people to address the greatest challenges of our day. The truth is that most of the things that have created the greatness of Tennessee don’t have very much to do with government at all.

I think Dr. King could have appreciated that if Gov. Lee believes these things, they would naturally bear upon his view of health care being provided by civil government. The two men might disagree about the jurisdictional authority of civil government, but I don’t think Dr. King would have seen the basis for the disagreement as racially motivated or a personal attack on him.

Lee and King on Border Security

That latter thought leads to the matter of the wall and border security. But I think this issue needs to be framed by an earlier statement in Gov. Lee’s inaugural speech about why Tennessee was “one of the most prosperous [states] in the nation”:

[M]ost of all, it happened because of the favor of God Himself. In spite of our inadequacies and our weaknesses, He has been strong on our behalf. He has blessed us indeed. And as governor of Tennessee, I will daily ask Him for his wisdom, guidance, and direction. We will need that wisdom. . . .

Recognizing that the wisdom he (and all of us) needs is beyond him may explain why Gov. Lee could believe that national borders are not bad things and that a wall is a good thing if it best secures those borders. Gov. Lee may believe, as he does regarding our prosperity, that God is the ultimate cause of them, too.

In Acts 17:26–27 (NKJV) we read that God “has made . . . every nation of men to dwell on all the face of the earth, and has determined their preappointed times and the boundaries of their dwellings” and for a reason, “so that they should seek the Lord.”1 If so, then securing them is not a bad thing.

Would Dr. King Approve?

Gov. Lee’s policy positions may not be right (though I think they are), but I can’t help but think that Dr. King would have said that it is God, not him, who deserves the greatest honor and our deepest love, and when there is a conflict between honoring and loving a person or God, God and His Word come first. And I believe that if Dr. King thought his own policy views were contrary to God’s Word, he’d have been sitting, too.

NOTES

1. I had never before noted this reason for national boundaries or thought, as a Christian, about what national boundaries might have to do with encouraging people to seek the Lord. Though I do not think national boundaries are justification for opposing all immigration or for keeping people in the misery found in their native nations, the stated reason invites Christians to consider whether our thinking about national boundaries and their integrity as only a matter of security is fully developed from God’s perspective. Obliterating or failing to recognize the legitimacy of boundaries seems to imply that God does not know what He is doing and to assume that boundaries are strictly and solely of human making for human/nationalistic purposes. I wonder if Rev. Barber, as a reverend, took this into consideration in developing his opposition to a border wall.


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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screenshot of the Freedom From Religion Letter to Governor-elect Bill Lee, along with images of a church and the Capitol building

Inauguration Worship Service Drives Some Folks Up the Wall

The Saturday morning worship service hosted by Governor-elect Bill Lee’s inauguration committee is driving The Freedom From Religion Foundation (FFRF) up the proverbial wall, the so-called “wall of separation between church and state.” The Foundation sent a letter to the Lee campaign this week asking them to desist. I read the letter, and the Foundation’s view of the Establishment Clause isn’t just silly and its cited legal “authority” overstated, it’s deadly.

Just Plain Silly

What’s silly about the letter is the fact that Lee will not be Tennessee’s governor at the time of the service. He will not be “the government” yet. Furthermore, all the evidence points to the fact that all the inaugural events, including this one, are being paid for by private funds, not the government.

This is about as much an establishment of religion as Lee inviting all those who voted for him to join him last Sunday at his church, which is also supported with private funds.

Maybe next week, after he’s sworn in, Lee should invite the Foundation’s “more than 350 members in Tennessee” to join him at his church for worship and see if the Foundation sends him a letter for that. After all, then he will actually be “the governor.” Why, Lee may never again be able to wear a “Welcome-my-name-is-Bill Lee” sticker at church events without “establishing” the religion of which he is an adherent.

What makes this really silly is that in 1978, the U.S. Supreme Court said Reverend Paul McDaniel of Chattanooga had a First Amendment Free Exercise right to run for public office and held unconstitutional the provision in Tennessee’s Constitution prohibiting “ministers of the Gospel” from running for a state legislative position.

Imagine Reverend McDaniel’s shock if, after winning his election, he had found out the Establishment Clause required him to leave the pulpit!

Exaggerating the Function of Court Opinions

But let’s get to the heart of the legal matter, the letter’s reliance on “Establishment Clause jurisprudence,” not “the Constitution.” This distinction is important.

Opinions that form the “jurisprudence” on which the Foundation relies are not part of the judicial “power” delegated to and exercised by any court:

The operative legal act performed by a court is the entry of a judgment; . . . As valuable as opinions may be to legitimize judgments, to give guidance to judges in the future, or to discipline a judge’s thinking, they are not necessary to the judicial function of deciding cases and controversies.1

In other words, it is the Constitution that ultimately controls civil government in the United States and government officials, and that’s why Supreme Court opinions get reversed. Opinions are legally not part of the Constitution.

Organizations like FFRF hope elected officials don’t know this. But government officials who think the Constitution supports their actions and the “constitutional jurisprudence” thrown in their face is wrong should be bold enough to act according to their understanding of what the Constitution says. Sure, they will be sued, but that’s one of the main ways that bad “constitutional jurisprudence” gets changed.

This is not lawlessness. This is called a “check and balance,” a largely forgotten concept when it comes to checking and balancing the “constitutional jurisprudence” of the Supreme Court.

An Unworkable Establishment Clause Can Be Deadly

Moreover, the FFRF’s interpretation of the Establishment Clause is unworkable. That’s because it fails to understand the basic principle of antithesis, which says if something is X, then it can’t also be non-X. For example, a nation can’t be both at war and in a time of peace; a person can’t be both materially poor and be materially wealthy, etc.

The letter says that “Establishment Clause jurisprudence” means that “government may not . . . promote . . . religion over non-religion.” Really?

Please, don’t ask us to believe that prohibiting all religious observations, religious words, and use of all religious symbols by government officials doesn’t promote “non-religion” over “religion.” Denying religion a place in the public square is promoting non-religion in the public square!

But that’s not the worst of it. Believing that religion has no place in the government sector is a belief about religion. As Abraham Kuyper, a theologian and Prime Minister of the Netherlands, once wrote: “If you exclude from your conceptions all reckoning with the Living God . . . , you certainly bring to the front a sharply defined interpretation of your own for our relation to God.”2

What groups like this want is government actors/officials to embrace their views about religion and its relationship to government over other views on the same subject and to exclude those other views.

Let’s all be grown-ups here and admit that there is no such thing as religious neutrality.

Religious neutrally and its corollary, religious liberty, are tactics used by those who don’t like the religious views of the prevailing majority, whether they be Christians, Muslims, Jews, or atheists. They use it in order to get a seat at the lawmaking, culture-influencing table. Then they press their religious views until they become the predominate lawmaking group. However, the recently conquered and former majority religious group begins to insist on religious liberty, and around we go.

Among Christians, it’s the Devil who believes in religious neutrality. In fact, he’s good with you-can-believe-anything-you-want religion and for those unsure of what they want, religious neutrality is an option. But not God. In fact, if I recall correctly, Adam and Eve were told that religious liberty meant death.

The inability of leaders of groups like the FFRF to understand the principle of antithesis and their ability to get judges to buy into it has not only taken the Establishment Clause far away from its original purpose, but rendered it unworkable.

And unworkable, in this instance, means a false view of religion and God. That eventually leads to death, as it has since the very beginning, only here it’s the death of the nation that embraces it.

NOTES

  1. Edward A. Hartnett, A Matter of Judgment, Not A Matter of Opinion, 74 N.Y.U. L. REV. 123, 126-27 (1999) (footnotes and internal alterations and quotation marks omitted).
  2. Abraham Kuyper, Lectures on Calvinism, p. 23 (WM. B. Eerdmans Publishing Company, Reprinted 1999).

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.