gambling cards and two champagne glasses with "groom" etched on them

Monday’s U.S. Supreme Court Decision Was a Federalism Doozy

This week the U.S. Supreme Court released an important Tenth Amendment decision, Murphy v. NCAA, that may have clear implications for the state’s lawsuit against the United States over the Refugee Act. It also might just overthrow the Court’s three-year-old same-sex “marriage” decision, Obergefell v. Hodges.

The Murphy case involved a provision in a federal statute passed years ago prohibiting states from “authorizing” any form of sports gambling. It’s important to note that this provision did not make sports betting a federal crime. Had it done so, the federal statute would have been directed against and regulated the activities of persons (individuals and individual entities), who can be subjected to federal laws.

But this provision was directed at limiting or controlling the powers of the state legislature to legalize or prohibit sports gambling. It was because the provision purported to bind a state’s legislature, not persons, that it raised a Tenth Amendment question.

Here is what six of the nine justices said in Murphy about why the provision was unconstitutional:

That provision unequivocally dictates what a state legislature may and may not do. . . . The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. [The federal law] “regulate[s] state governments’ regulation” of their citizens. The Constitution gives Congress no such power.

Here is the point: Congress can’t tell a state what laws it must have or what state laws it cannot repeal.

Application to Refugee Resettlement Lawsuit

In March 2017, the Tennessee Legislature sued the United States arguing that Congress’ regulation of refugees through private vendors under the Refugee Act placed a de facto requirement on the state that it affirmatively enact a state law—the state budget—that covers certain costs associated with that federal program.

The lawsuit isn’t about whether one likes or dislikes the federal program or likes or dislikes refugees resettling here. It is about the Constitution and whether the federal government has the power to make a state enact a law to pay for a federal program in which it does not participate.

Murphy should bolster the Legislature’s argument that where the federal government chooses to regulate, it must do so, and it can’t require the state to participate in any way in the federal program’s administration or funding.

Application to Obergefell

Given that the U.S. Supreme Court is a branch of the federal government, its powers, like Congress’, are limited. In 2015, the Court held that marriage was a fundamental right under the U.S. Constitution and states could not have a statute that limited the issuance of licenses to opposite-sex couples.

But why do states have to administer this federal right by enacting statutes to effectuate this federal right and by using Tennessee tax dollars to pay for the costs associated with administering those statutes?

Since Obergefell, it seems that state officials and most attorneys have assumed that the state must have a marriage licensing statute and that that statute must authorize the issuance of marriage licenses to any two people, regardless of their sex.

But if a branch of the federal government expressly given legislative functions under the U.S. Constitution, Congress, cannot forbid states from repealing a law or requiring them to enact a particular law, then how can the Supreme Court, which clearly has no policy or legislative powers, do that when it comes to effectuating the federal right to marry?

As in Murphy, the federal “law” in Obergefell appears to “regulate[s] state governments’ regulation” of their citizens!

This federalism issue was raised by Michigan’s attorney general during the oral arguments in Obergefell and all the justices missed the point—There is nothing, he said, in the U.S. Constitution that requires a state to license a marriage and no branch of the federal government can require them to do so.1

The Supremacy Clause Doesn’t ‘Save’ Obergefell

Thankfully, the Court flushed Congress out of the refuge to which attorneys unwilling to discuss the merits of Obergefell have retreated: the Supremacy Clause. Murphy rebuffed the argument that the Supremacy Clause provided Congress the power to bind the state’s legislature.

The Supremacy Clause, the Court said, only provides a “rule of decision” for the Court to follow when an otherwise valid state law conflicts with an otherwise valid exercise of federal power—the federal exercise of power trumps the state exercise of power. It is not a source of power by which an otherwise invalid exercise of federal power can be justified.

One More Lawsuit Is Needed

Perhaps the Legislature should file one more lawsuit. This time it should seek to enjoin the Department of Health from issuing marriage licenses to two people of the same sex, contrary to express language in our marriage licensing statute.

The argument is simple: Its legislative powers have been encroached on by the U.S. Supreme Court’s apparent requirement that it have a statute requiring state officials to administer a form of marriage that the Constitution of its state expressly prohibits it from recognizing, and it is the constitutional responsibility of either the Court or Congress to administer this new federal right. Neither can tell the state how to affirmatively regulate the conduct of their residents.

Of course, such an argument might just cause the Court to realize it made a mistake in Obergefell, in which case the Court could just chalk it up to “Murphy’s Law.”

NOTES

  1. The actual statement by the Michigan attorney general was, “If the State today decided to have no marriage, as some States have proposed, that wouldn’t violate a fundamental right. . . . [T]he Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by—by forcing them to recognize and give benefits to anyone.”

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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purple flowers in a basket

Is Mother’s Day an Anachronism That Must Go?

Although my mother has passed into eternity, I will still celebrate Mother’s Day, giving thanks to God for her and honoring my wife because of her own high calling as a mother. But driving into work this week, a radio commercial about buying jewelry for Mother’s Day caught my attention. I couldn’t help but think about how much longer Mother’s Day will still be acknowledged and celebrated.

The line in the commercial suggested that someone buy Mom jewelry “for all those times she didn’t tell Dad when he got home.” I’m sure a lot of us heard something like that from our mothers somewhere along the line.

But the reference to fathers in connection with a day celebrating mothers really grabbed my attention because of what’s happened the last couple of years in connection with the Boy Scouts. The Boy Scouts, which heartily embraced homosexual behaviors a couple of years ago, opened itself to girls last year, and then last week dropped the word “Boy” from its name. Now the organization is almost unrecognizable to most of us.

For the following reasons, it could be only a matter of time before Mother’s Day will go the way of the Boy Scouts.

The Spirit of the Age: Offense and Victimhood

First, we must begin by recognizing that the spirit of the age in which we live is one in which many look for offense or consider themselves mere victims of something outside of themselves.

On the other hand, our social milieu encourages us to affirm a person’s victimhood and the offense in order to help them feel better about themselves and doing so is supposed to help us assuage whatever guilt we might feel for the alleged wrong, whether there is real ethical guilt or not.

The Lies We Tell Ourselves Must Be Suppressed

This brings me to the second consideration. We have to recognize that our culture is in the process of embracing what we know is a biological lie, that a child can have two mothers (or two fathers).

Given these two realities, what is going to be the response of the two-mom and two-dad families when their kids start asking why they don’t celebrate either Mother’s Day or Father’s Day? What will happen if those two days of honor and recognition cause their child to wonder, let alone ask, if there is something unique and special that he or she missed by not having a relationship with a person of the biological sex that is intentionally missing in their home?

Parents in these two-parents-of-the-same-sex households may then begin to feel that these year-after-year memorial days are offensive and demeaning to their preferred family model. Convincing themselves of that may be preferable to recognizing that their child is simply asking questions concerning their attempt to circumvent either the law of God or, if you will, the obvious laws of nature. After all, our natural tendency is to suppress the truth, because believing the lie somehow, in the moment, serves an end we desire more than that which we fear will come about if we accept the truth.

Those who support same-sex “marriage” and don’t want anyone to be offended or feel victimized will then feel compelled to criticize Mother’s Day and Father’s Day as anachronisms inconsistent with our “enlightened” understandings about human sexuality, marriage, and family.

What Is at the Root of all This?

Those who understand the root cause of what is going on in the blurring of the lines between male and female should not find these thoughts Orwellian. They are a result of denying God as the Creator and all things being His creation and embracing the view that the cosmos is all there is, expressed by the naturalist in the scientific dogma of evolution and by the religious as pantheism.

Theologian Abraham Kuyper expresses well why this is so:

For centuries the Church of Christ has guarded its barrier against every open or cry to pantheism by solemn confession in the inaugural of its Articles of Faith: ‘I believe in God, the Father Almighty, Maker of heaven and earth;’. . . The most distinctly marked boundary lines lie between God and the world; and with the taking away of this line all other boundaries are blurred into mere shadows. For every distinction made in our consciousness . . . takes root a last in this primordial antithesis . . . But every pantheist starts out with the denial of this primordial antithesis, which is mother to every antithesis among creations.

Unless the Church regains its doctrinal footing by challenging the denial or irrelevance of God as our Creator, which washes over us at every turn, and gathers the courage to proclaim the truth in the public square, we better enjoy Mother’s Day while we can.1

NOTES

  1. Abraham Kuyper, Pantheism’s Destruction of Boundaries.

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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mass transit metro Nashville

Is Your Legislator in the Big-Business Echo Chamber?

The overwhelming defeat of the mass transit referendum in Metro Nashville this week should serve as a lesson for the candidates for governor and the state Legislature. But they won’t learn if we don’t insist that they do. Here is how you can “school them.”

To understand the lesson they need to learn, you need to know two things. First, you need to understand what currently seems to drive legislators when it comes to legislation that takes a commonsense approach to some of the social issues we’re facing.

What Is Driving Legislators’ Thinking

It is not what regular Joe and Jane Tennessean think about these issues, but what the Human Rights Campaign, the largest pro-homosexual advocacy organization in the country, and its business allies think. Those business allies are, for the most part, represented by a group called Tennessee Thrives.

Increasingly Republicans, particularly those in positions of leadership, are afraid to do anything that would upset these corporate bigwigs. So, when legislation comes up, as it has for the last three years, that would help keep a 12-year-old biological boy from showering in the junior high girls’ locker room because he thinks he’s a girl, Speakers Randy McNally and Beth Harwell, along with Gov. Haslam (the “Big Three”), begin to “encourage” legislators to kill the bill.

For example, this year a proposed bill would have simply allowed the state to help a local public school system afford the cost of defending itself against an ACLU lawsuit if it got sued for adopting a policy prohibiting biological males from being in the girls’ locker room. The bill died for lack of a second on the Senate Judiciary Committee (kudos for Sen. Mike Bell moving the bill).

Was this bill, and the ones dealing with this subject over the previous two years, opposed because the Big Three and our legislators think it’s great to let a boy shower with a girl? No. They would tell you that they are opposed to a boy being able to do so. So what’s the deal?

It is most likely this: Tennessee Thrives said that the state supporting school systems that believe boys are boys and girls are girls and that boys and girls shouldn’t share locker room shower facilities is “discriminatory” and “will harm our economy and damage our state’s reputation.”

Are you kidding me? Protecting the privacy and safety of kids when they are in a locker room by keeping their biological opposites out is discriminatory? Recognizing objective biological realities over subjective psychological states of mind is discriminatory? Doing that is going to harm our economy?

I think Joe and Jane Tennessean, particularly those with kids and grandkids using those locker rooms, would strongly disagree. It’s common sense. And this leads to the second thing you need to understand.

Big Business Can’t Outvote You

According to The Tennessean, “[t]he for-transit campaign . . . was very much the product of the chamber of commerce. . . . Rather than broadening support . . . boosted by small individual donors, the transit coalition chose to build its coffers almost exclusively with checks from large companies, firms and powerful institutions.”

In other words, the critical importance of the mass transit plan was echoing around in the heads of the chamber elites, but it sure wasn’t resonating among the masses of the regular people who vote.

Our next governor and those who seek to serve in our Legislature need to get out of the “echo chamber” of the big business chamber-type elites whose only corporate value is the bottom line and who could care less about what Joe and Jane Tennessean think.

The number of votes that will be cast in August and November by Joe and Jane Tennessean will outnumber the corporate heads of the businesses belonging to Tennessee Thrives. But they have to remind legislators and the gubernatorial candidates of that. And here’s how.

How to ‘School’ the Political Candidates

First, when it comes to who should be our next governor, at TNVoterGuide.org you can watch videos of how the candidates answered nine questions we posed to them.

The two who chose not to participate and the one who chose to participate but did not answer any of the actual questions, let alone follow the directions, just told you what they think about those of us who care about these issues—we don’t really matter to them, regardless of what they may say on a television commercial. As to the rest, listen to what they said and listen to how they said it, and take your conclusions to the ballot box.

Then, in a few weeks, we’ll urge you to ask your state legislative candidates to answer our 15-question voter guide survey. Let them know that you expect answers if they want your vote.

If we who are just regular citizens don’t weigh in on these issues during this election cycle, then only the corporate bullies aligned with Tennessee Thrives will thrive.


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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Easter crosses and man holding his head in his hands while sitting on a couch

Is There a Gospel Remedy for Our Present Ills?

Last week, I pointed to social and political phenomenon that I thought evidenced our slide into socialism. That slide, I said, would stop only if a new generation of Vivien Kellems arose, a people with the courage to stand against a totalitarian state; however, I predicted such courage would only arise from people inspired by pulpits aflame with a radical form of the gospel, not a new one, just one too many seem to have forgotten. What, then, is this gospel and how does it apply?

The Bad News That Precedes the Good News

The gospel, though literally and substantively good news, is understood as good only in light of the bad news. In this case, culturally, the bad news is that our legal system, including the legal philosophy of the U.S. Supreme Court, no longer believes that there is any pre-political law “created,” “posited” or “imposed on” us from a source outside of ourselves.

This source, of course, is a Creator God, who the theologians describe as having the quality of transcendence. Now, bear with me just a moment, because that term shows up in the Supreme Court.

Transcendence, from a Christian worldview, means God is distinct in His very essence from that which He created, including us. It is not that God is immeasurably more than us in terms of intellect, strength, wisdom, and ethics. He is simply not like us; we only bear His image, much the same way that our image in a mirror is not us.

The existence of a transcendent Creator God makes it logical and rational to believe that He has imposed a law on all of His creation by which everything is governed, including us.

But in 1938, in Erie Railroad v. Tompkins, the United States Supreme Court officially declared that there is no “transcendental body of law,” which necessarily means that, for legal and constitutional purposes, there is no pre-political source of rights that we could assert against the demands made on us by our civil government.

Therefore, inalienable rights are officially dead; the only “sovereign” is now civil government, and the “God” who arbitrates disputes between competing claims of civil right given us by civil government is the U.S. Supreme Court.

That is a description of what our Founding Fathers would have called totalitarian civil government and tyranny.

The Good News of the Kingdom

Now that we have the bad news, we need to realize the good news. The good news is not that Jesus is the great psychologist come down from God to help us cope with life’s challenges and heal the wounds to our inner child, as much as that may be needed. Rather, the good news is we can be free of the tyranny that humankind produces and be at liberty in relationship with God, our Creator.

The gospel is the proclamation among the kingdoms of this earth, including the personal ones we create inside our own heads, that the Kingdom of God has come near, and all such kingdoms need to live and see things accordingly. That may sound like theological mumbo jumbo, but let me allow theologian turned Prime Minister of the Netherlands, Abraham Kuyper, to interpret and apply that gospel.

In 1898, Kuyper spoke to the seminary students at Princeton University and warned that America would soon be facing its own French Revolution from which followed the clamor of socialism to satisfy the Revolution’s unfulfilled promise of liberty, equality, and fraternity. Their credo, like many of our leaders today, was, “No God, No Master.”

In response to a socialist “remedy” promising liberty, equality, and fraternity, Kuyper called people to a gospel that proclaims the absolute authority of a sovereign transcendent Creator God, which “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 God1.  (emphasis supplied)

That is a radical gospel. It creates liberty from the bondage that comes with jealousy and envy. It leads to equality in the only place that really matters, before the eyes of the God who made us. And it leads to real fraternity, because none dare see themselves as greater than another, for we have all been made in God’s image and our differences are from God and for His glory.

Only this gospel, one that believes in and points to the sovereign authority of a transcendent, Creator God, contains a sufficient motivation for its proclamation, for it speaks to what we long for, and only that gospel can provide the courage we need to do so. It just needs to be unleashed and lived out.

NOTES

  1. Abraham Kuyper, The Stone Lectures: Lectures on Calvinism, p.27.

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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Vivien Kellems, 1941

Tax Day Makes Me Wonder, Are There Any More Vivien Kellems?

Recently, I was throwing away some things that had accumulated in my dad’s attic, and I was intrigued by a yellowed, brittle page from the local newspaper because it was dated June 6, 1958, the month and year I was born. There was a wonderful article about my dad graduating with honors from the University of Chattanooga, but it was what I read on the flip-side editorial page that stunned me: “Courage Brings Persecution to Woman Fighting for Rights.”

The editorial was about a woman business owner in Connecticut, Vivien Kellems. The writer, Westbrook Pegler, said, “Miss Kellems has been a warrior for all of us for about 15 years in a personal campaign to restore our constitutional right to the profit of our work and talent.” Turns out she was a warrior because she refused to be an “agent” of the government for collecting federal taxes from her 100-something employees.

Here’s what she said: “If they wanted me to be their agent, they’d have to pay me, and I want a badge.” In essence, she was asking, What moral principle justifies the government forcing employers to act as its unpaid tax collectors?

In her 1952 book Toil, Taxes, and Trouble, which can be read here, Kellems wrote:

The most un-American phrase in our modern vocabulary is ‘take home pay.’ What do we mean, ‘take home pay’? When I hire a man to work for me we discuss three things: the job to be done, the hours he shall work, and the wages he shall receive. And on Friday when he receives that pay envelope, we have both fulfilled our contract for that week. . . . This system is deliberately designed to make involuntary tax collectors of every employer and to impose involuntary tax servitude upon every employee. We don’t need to go to Russia for slavery, we’ve got it right here.

She only surrendered her case against forced collection of federal taxes when it threatened to bankrupt her company, but she continued to challenge other aspects of the income tax for the rest of her life, calling it “a 1,598-page hydra-headed monster.”

Pegler rightly said of her, “Very few citizens have been willing to spend the time and mental effort necessary to learn that they are not free citizens but serfs under the amendment to give Congress the power to confiscate every cent of every person’s income every year.” And while Congress has never done that, the top tax rate during my lifetime was, for a number of years, 70 percent until slashed during the Reagan presidency.

But today it isn’t just the income tax that has reduced us from “free citizens” to “serfs.” Congress gives us a plethora of new laws every year that take away our liberties, all in the name of doing something good for us.

But worse yet is our United States Supreme Court. It keeps creating out of thin air new individual rights and setting them in a form of constitutional cement that thwarts our ability to govern ourselves as a society, no matter whom we put in Congress or in the Oval Office.

What the history of France tells us is that when the U.S. Supreme Court’s unrestrained governing principle of individual autonomy runs its course, we will find that it has failed to deliver on the promise inherent in that individualism of equality and brotherhood. Individualism doesn’t lead to equality and brotherhood but to greater inequality and chaos. When that happens, history also tells us that big government politicians come to the rescue, promising us that socialism will deliver the equality and brotherhood we desire.

So, when you read about income inequality, the phenomenon of Bernie Sanders; the millennial generation lauding socialism; and even Pope Francis suggesting a new, more equitable economic system; just know it’s coming to America.

What I don’t know is whether any Vivien Kellems will arise to stop what’s coming. But if they arise, I believe it will be because they were inspired by pulpits aflame with a radical form of the gospel, not a new one, just one too many seem to have forgotten. I’ll talk about that next week.


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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