The year 2018 with the Tennessee flag as part of the "0" against fireworks background

Putting the ‘New’ in the New Year

As we come to the end of the year, ringing out the old and ringing in the new has real meaning to me when it comes to what’s about to happen in Tennessee politics. And if you’re not ready, the ringing could become a loud clanging in your head for years to come.

The “new year” legislative session begins on the second Tuesday in January, as it does every year. That’s not new. But it could be a ringing out of a right-of-center Legislature for a more centrist one in the future, depending on what happens in August and November with the elections.

Of course, calling the current Legislature right-of-center might be generous. It appears, after years of trying, that the Legislature can’t even pass a pilot program to test opportunity scholarships in low-performing schools. Last year, none of the seven senators who voted to keep boys out of the girls’ locker rooms the year before would even make a motion to discuss and debate a more scale-down version of the same bill. But maybe that’s because some in leadership prefer to put the emphasis on the last part of right of center.

To get a feel for the “new” that’s coming, one need only look at the changes about to take place in the state House. Since every bill, to become law, must pass the state House, a shift to the left there could change everything.

In the state House, 15 members have already announced their retirement after this session, two more are leaving to run for the state Senate, and one has already moved to the Senate (by County Commission appointment). In other words, 18 of 99 seats will be changing hands in 2018, and that doesn’t count how many might not return because they lose a primary challenge.

But the biggest potential change in the House in 2018 will be the change in Speaker, brought about by Speaker Beth Harwell’s run for governor. The Speaker appoints all the committee chairs and decides how conservative, moderate, or liberal a committee will be based on whom he or she assigns to the committee.

Last year Speaker Harwell held onto her speakership against a more conservative challenger, Jimmy Matlock, now running for the U.S. House, by winning her caucus’ nomination by a vote of 40-30. The outcome of the caucus’ nomination for 2018 will turn on what happens in August.

At least 13 of the Republicans who voted in that caucus election are retiring. Whether Republicans will vote for a moderate or conservative Speaker of the House in 2018 will depend on how many of those seats swing from moderate to conservative and vice versa, and it may not take but a change of four or five, depending on what happens with some incumbent Republicans who may face primary challenges.

Of course, that’s not going be all the “new” that 2018 rings in. We will have a new governor. While I’m not ready to name names, I can say that not even all the Republican candidates are true conservatives in my estimation.

A governor wields a lot of influence, and, unfortunately, I’ve seen moderate governors move a conservative legislator to his way of thinking. I’ve never seen a governor lean on a fiscal or social conservative to stay the course when under pressure to move to the left.

What this means for you is that you better know who you are voting for in 2018, and we’ll do what we can to help. We will, again, be scoring incumbent legislators’ votes, but with so many incumbents retiring, finding a good way to evaluate those in a primary for those open seats will be a challenge. They will have no voting record, and increasingly candidates don’t like to fill out surveys that force them to talk about issues they would rather ignore.

Figuring out how to evaluate these primary candidates is one of the things I’ll be working on over the next few months. One possibility is enabling one of the organizations for which I work, Family Action of Tennessee, to do something new by making endorsements in some key races. If you have thoughts on that, let me know.

But one thing is for sure: The new year is going to bring a lot that will be new to the political world in 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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Smiling woman holding a gift surrounded by a holly wreath and Christmas presents

How to Wish the Politically Correct Crowd a Merry Christmas

The politically correct crowd insists that it is somehow not correct to wish people a “Merry Christmas.” Instead, we are supposed to say something like “Happy Holidays.” But something’s always troubled me about that. And now I’ve put my finger on it. I’ve put all my legal skills at parsing words into sorting out this complex problem, and perhaps there is another way to express ourselves.

I know that the problem with “Merry Christmas” is that those who extend that greeting are supposedly hoping people find merriment in a Christian religious observance. And I guess they think the greeting is some attempt to impose on them the greeter’s religion. Of course, if you think that at this point our culture, on the whole, really perceives Christmas as a religious observance more than a secular holiday, then you may not have noticed how many people get up at 3 a.m. on Black Friday to usher in the Christmas season at “services” offered at the mall.

I know that wasn’t very politically correct, but onto the business at hand—what greeting do you give people at this time of year? The politically correct crowd that is constantly worried about offending someone’s feelings and sensibilities suggests we say, “Happy Holidays” to respect those who celebrate Kwanzaa or Hanukkah or maybe something else I’ve forgotten.

But what about those who, like Jehovah’s witnesses, recognize no holiday this week? Doesn’t “Happy Holidays” impose on them our beliefs about the celebratory nature of the season? So, I think that in order to be tolerant and sensitive to other’s feelings, we should just say something like “Enjoy the Season.” After all, it is a season of the year for everyone.

Ah, but winter is not that enjoyable to a lot of people. Rather, the cold makes them feel miserable and being light-deprived by the short days makes them feel depressed. But I guess that’s a good reason to wish they could enjoy the season, because wouldn’t we rather them enjoy the season than be miserable?

But, wait. That creates another problem. Why would I want to try to tell people how they should feel? After all, my feelings are just that, my feelings. Why should someone else try to tell me how I should feel? That’s not very sensitive. We should be affirmed in whatever feelings we may have and others should respect that.

Trying to be the most politically correct person that I can (which, you readers know, is my life’s ambition), let me suggest the following to those of you who really want to avoid any offense. Maybe you should not say anything and just print this on little cards and hand them out:

Please feel however you want to feel about this time of year, or if you prefer, please do not feel like you have to have any feelings at all about this time of year or feel like you have to have any feelings about any other time of year if you do not feel like feeling anything right now. And, of course, feel free not to feel anything at any time of year if that’s what you feel like, in which case, I hope nothing or no one interferes with how you are feeling or not feeling at the time you choose to be feeling or not feeling something.

To all the rest of you willing to risk being offended, I say, “Merry Christmas!”

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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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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picture representing same-sex wedding cake and U.S. Supreme Court to denote the Jack Phillips Masterpiece Cakeshop case

Will Liberty Be ‘Battered’ by Wedding Cakes?

Multiple thoughts flooded my mind as I read the transcript of Tuesday’s oral arguments before the U.S. Supreme Court over whether a baker, Jack Phillips, owner of Masterpiece Cakeshop, by refusing to make a custom wedding cake for a same-sex commitment ceremony, had violated a Colorado law that makes sexual orientation a protected class. But foremost was whether this experiment in liberty has come to an end.

As noted, the issue was a state law that applied to the conduct of private actors, not a state law applicable to government actors, state or local officials. And the questions by the justices made it clear that their chief concern was where to draw the line when civil government sticks its nose into interactions between two private citizens when the context is commerce.

First, the justices tried to sort through what constitutes “speech” under the First Amendment when it comes to food and art and what other kinds of food or forms of creative expression constitute “speech” that would be either subject to or free from the commercial transaction being coerced by the state statute.

Second, they were troubled with whether a religious “exemption” for not making a wedding cake could be used by those who assert religious grounds for not engaging in commerce with those of a particular race or ethnicity. And how that type of exemption could spread to other classes of people protected by the state law, like ethnic minorities.

I admit, those are some great questions and drawing lines in these situations is very hard. For example, “conservatives” would not want to concede that their asked-for religious “exemption” might allow someone to refuse to make a cake for an interracial marriage celebration, but “liberals” would not want their asked-for prohibition of a religious exception to force Muslims to make a Zionist cake celebrating the creation of the state of Israel. We like tolerance best when it runs only the direction we like.

For the next several months, commentators will speculate on how the Court might draw various lines in an effort to unloose the Gordian knot that was revealed by the justices’ questions. But one thing all sides are probably unwilling to consider is the fact that we created the knot.

We began tying the knot several decades ago when we began to use the force of civil law to make people engage in commerce with one another, and now we’ve added to our thinking the lie that if the law doesn’t force someone to engage in commerce with us, then we have lost our dignity.

But we won’t reconsider what we’re doing, and the reason ties into what the attorney representing the same-sex couple said about the implications of a religious exemption:

Once you open this up, once you say generally applicable regulations of conduct have exceptions when someone raises a religious objection, or in this case have objections where someone raises a speech objection, you’re in a world in which every man is a law unto himself.

Given that the Court again spoke of dignity wounds being inflicted by what the law does or does not force people to do, the lawyer was essentially saying that if civil government doesn’t intervene to force interactions between private parties, if it restricts itself to simply ensuring that its own actions do not violate due process or equal protection, then somebody might use his or her liberty in a way that undermines someone’s sense of dignity.

In other words, liberty in commercial interactions is too scary to be allowed in society anymore. Liberals are afraid of not getting what they want because of what “homophobes” out there might do and the conservatives are afraid of what they’ll be called because of what racists out there might do.

How ironic and what a strange reversal of roles. We seem to have come to a place in which liberals are afraid of liberty and conservatives are afraid to support it.

I’ll be the first to admit that returning to freedom of commerce among private actors could be messy. No doubt, people will allow things other than mere potential for profit to influence who they do business with, and their failure to do business with us can hurt our feelings.

However, Tuesday’s oral argument made it clear that there’s also nothing tidy about the mess civil government has created by its statutes compelling people to engage in commerce with each other, and the feelings of whomever the justices rule against will still be hurt.

But, apparently, that is to be preferred to liberty and, if so, then liberty may have just run its course in America. It seems like neither side is much willing to speak up for it anymore.

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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signing a marriage certificate

Is Your County Clerk Acting Illegally?

A storm is brewing in Bradley County, Tenn., and it’s not over whether the sheriff there should be convicted of the various crimes for which he’s been indicted. It’s a lawsuit that puts on “trial” a question about whether the Bradley County Clerk’s Office has been acting illegally, and if so, then your county clerk may have been acting illegally, too. Most lawyers laughed and scoffed when FACT filed a lawsuit about this nearly two years ago. They may not be doing so now.

Background of the Bradley County Lawsuit

Many readers may recall that in February 2016, I filed a lawsuit through our organization’s Constitutional Government Defense Fund on behalf of a minister and a county commissioner living in Bradley County. One of their claims, as citizens, was that their right to vote for legislators who would not change our state’s marriage licensing laws was being infringed upon because their county clerk (and, indeed, all Tennessee’s county clerks) was issuing marriage licenses to same-sex couples when the licensing statute, which has never been changed by the Legislature or ruled on by a court, clearly said that licenses could only be issued to “male and female” applicants.

This week the judge who will be hearing arguments on the merits of that case on December 13th put down a ruling with potentially huge implications.

What Happened With the Marriage-Licensing Case

The ruling by the trial court was on a motion by more than 50 Tennessee legislators asking to intervene in the lawsuit to stop the county clerk from issuing marriage licenses to same-sex couples that our state’s statutes had never authorized her to issue. Their argument rested on the fact that our state Constitution expressly provides that only the Legislature can “prescribe” any duties and powers to a county clerk.

The question, therefore, was this: On the basis of what authority, then, were county clerks issuing marriage licenses to same-sex couples, since the Legislature had never passed a statute “prescribing” to them any duty or power to issue such a license?

This question was particularly compelling to the legislators since the United States Supreme Court had held that licensing laws like ours were “invalid.” How, they wondered, do you have authority to issue any license under a type of licensing statute that the Court said is constitutionally invalid and we’ve not enacted a statute to take its place?

In essence, the legislators wanted to protect their authority to prescribe the county clerk’s duties and stop the county clerks from assuming an authority that had not been prescribed to them. When officials do acts that they are not authorized to do, we lawyers call them “ultra vires” acts. Non-lawyers might simply call them illegal or unlawful.

What the Court Said

The trial court denied the legislators the right to intervene, but what it said in doing so is what’s important. The trial court said,

[Legislators] argue the clerk is committing an ultra vires act and that the current parties to the lawsuit cannot protect [their interest], . . . but [the complaint] contains allegations of ultra vires acts on the part of the Clerk and prays for relief of enjoining her from issuing marriage licenses. From that the [Legislators] assert that they are the proper party to make the ultra vires argument. The court disagrees and specifically finds that the plaintiffs are the proper party to make the ultra vires argument.

What It Means

In other words, the trial court was saying that the citizen plaintiffs have a legal right to argue that the county clerk has been acting illegally and unlawfully1 and, thus, the legislators don’t need to get involved at this point.

This does not mean the court will rule in the plaintiffs’ favor after the arguments on the 13th are fully evaluated. However, it does mean that the court recognizes that the scoffers were wrong—that there is an open constitutional question that a state court must decide, namely, what should be done with Obergefell’s holding that marriage licensing statutes like ours are invalid?

The answer to that question should be very interesting. Stay tuned.

1. This is not to condemn all our county clerks or Bradley County’s clerk in particular. They just did what the state’s attorney general told them to do. But his advice, like that of any lawyer, might prove to have been 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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