law books and gavel

Will I Lose My Law License?

The Tennessee Supreme Court will soon be considering a proposed change to the rules of ethics that govern licensed attorneys that could well result in my disbarment because of the things I’ve written the last few weeks about marriage.

The proposed change adds a commentary to illuminate the intent behind our rule prohibiting discrimination. The proposed commentary says it is unethical for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” (emphasis supplied)

The Supreme Court provided attorneys an opportunity to submit their opinion about the proposed commentary. I suspect that the opinion I filed with the Court was rather unique. Here is an abbreviated version of what I said:

I hereby voice my objection to the new proposed Rule 8.4 . . . because, to my knowledge, neither the Board of Professional Responsibility nor the Tennessee Bar Association have provided a foundation upon which the meaning of the word “discrimination” and its grammatical variations can be determined and, therefore, it has not provided a basis for determining that the various listed offenses are, in fact, discriminatory or how a lawyer can know or reasonably know whether his or her actions are, in fact or in principle, discriminatory.

Law, in order not to be arbitrary, must rest upon sure and fixed standards and definitions. To do otherwise is what prior generations of legal philosophers would have called lawlessness.

Unless any act that anyone claims to be discriminatory is going to be held discriminatory by all, then there must be some standard by which an act is determined to be unethical and unjust discrimination. Otherwise, we who are to be defenders of the law have become lawless and rightly susceptible to claims of injustice.

For instance, the current commentary to current Rule 8.4 prohibits discrimination on the basis of age. But TCA § 36-13-506 uses age as a basis for discriminating against the treatment given different perpetrators of rape. There is “mitigated statutory rape” and “statutory rape,” as distinguished from rape. Are those laws unethically and immorally discriminatory, and would the advocacy in favor of keeping those laws in favor of all rape being treated the same, regardless of the victim’s age, be unethically discriminatory?

Many would scoff at this example, but those who scoff at the serious question of the basis upon which we determine something to be ethical and justifiable discrimination or unethical and unjustifiable discrimination expose their ignorance. Even by saying my example is a poor one and irrelevant, they are, in fact, exercising a form of discrimination, discriminating between examples they believe to be relevant and those they believe to be irrelevant and doing so on the basis of a standard for determining relevancy.

Their scoffing betrays the denial of the question I beg this Court to answer—Is there a standard upon which we have determined that discrimination proposed in this new commentary on our ethical obligations is good or bad, and what standard will be applied to future claims of discrimination?

This becomes particularly problematic given that the proposed commentary on the rules prohibits conduct “the lawyer knows or reasonably should know is harassment or discrimination.” If one holds to certain belief systems, for example, the beliefs flowing from the orthodox, historic doctrines of Christianity regarding the nature of human beings and human sexuality, the nature of the social order, and natural law, then a lawyer saying or doing something consistent with those beliefs would not “know” or “reasonably know” his or her comments or actions about same-sex marriage or “sexual orientation” to be discriminatory. Rather, for that lawyer not to say them would be a denial of his or her core beliefs.

Until this Court, the Bar Association, and the Board of Professional Responsibility can articulate for the members of the bar a standard for determining which acts constitute discrimination that should be prohibited and those which may be allowed, in my view none have any business proceeding on what would be an undefined and therefore arbitrary basis.

Arbitrary, rootless law grounded only in the excogitative genius of those who then happen to control the apparatus of power is the definition of tyranny and is a threat to liberty, not just to me, but to all.

As George Mason, delegate to the Constitutional Convention of 1787 said, “No free government or the blessings of liberty can be preserved to any people but by . . . frequent recurrence to fundamental principles.”1 I beg of this Court to consider those fundamental principles.

So, proceed as you must, but know that for me, I stand on the side of Patrick Henry—give me true liberty, even if it means you take my license.


  1. Quoted from Charles Warren, The Making of the Constitution, 804.

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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Constitution of the United States and the Liberty Bell

What Are Inalienable Rights and Liberty Worth to You?

After my mother went to heaven, my dad eventually remarried. After the marriage ceremony, the minister asked my dad and me to join him in his office, and we’d get the marriage license and application for the certificate of marriage signed. I now appreciate more fully the meaning of what was a humorous exchange between them.

My dad’s response to the minister? Bewilderment! He said, “You mean at my age I have to get permission from the state in order to get married?”

The minister was horrified and immediately wanted to know if they were going to be sharing a motel room that evening.

Dad’s response was effectively, “Of course. We just got married.”

Marriage between a man and a woman should never be considered or seen as a right conferred on us only by the government. Government didn’t “create” marriage. From the Christian’s perspective, God did1 and governments simply acknowledge that pre-existing fact.

The minister’s problem was that he was so steeped in statist thinking that it did not even cross his mind that they were married in God’s sight. He was worried they’d be living in sin until after their honeymoon because they didn’t have a state license.

I say, “Poppycock!”

What’s the Source of the ‘Right’ to Marry?

According to the U.S. Supreme Court, early in our history state marriage laws did not confer the right to marry but only allowed for the “registration of marriages” and to provide “evidence of the marriage.” The “right to marry,” the Court said, was part of the common law because it was inherent to the complementariness of the male-female relationship.

But over time states arrogated to themselves sole power over marriage, saying effectively you can only get married if we give you permission and you can only get married if you agree to our terms and conditions for doing so.

When states did that, men and women didn’t object that their inherent, inalienable, pre-governmental right to marry was being usurped. That was understandable. At the time of the state’s power grab, the state’s definition and the terms and conditions for a lawful marriage lined up with Christian beliefs. Even non-Christians were okay because they could use a government official, rather than a minister, to legalize their marriage.

My dad, born in 1931 into a different era, had assumed that at his age he had a right to marry apart from the state and got hit, unexpectedly, with the fact he didn’t have that right.

At the heart of Obergefell is this idea: When states chose to forsake the Higher Law that defines and establishes in a man and a woman the right to marry and made marriage its sole domain, they subjected themselves to the mercy of the U.S. Supreme Court and its interpretation of what the “higher law” of the Constitution imposes on them.

Of course, states never thought the U.S. Supreme Court would impose a new definition of marriage on them via constitutional “interpretation.”

The Really Big Underlying Issue

So, as we think about whether the state should stop licensing marriages and allow a man and woman to exercise their pre-governmental right to marry and register notice of that marriage with county clerks or the state’s office of vital records, we need to realize that the issue here is bigger than marriage.

If there is no pre-political type of law, call it what you will and ascribe to it what source you will, and law only comes from the pen of a legislator or judge, then there can be no inalienable rights for anyone.

Inalienable rights rest on the proposition that there is a form of “law” that pre-exists the lawmaker and which the lawmaker must acknowledge.

You may not think marriage is one of those pre-existing laws, but if something that has been going on for millennia is not a right that pre-exists government, then what chance do other rights-life, speech, guns, and religion-have in the face of the U.S. Supreme Court’s pen? All of these other rights, but not marriage, have been widely suppressed by governments at one time or the other.

What Will Our Position Say About Us?

Fighting to take the creation of marriage out of the state’s hands and therefore the Supreme Court’s hands will lead to a super-sized Human Rights Campaign boycott. But if we’re silent when that fight comes, what will it say about us?

I would hope our silence would not evidence a willingness to give up on inalienable rights or to say they are not worth the cost, if any, of enduring a boycott.

When I think of defending the common law right of a man and woman to marry against government usurpation and absolute control of that right, I can hear the echo of Patrick Henry, “Give me liberty or give me death.” I hope you hear him, too.


  1. Non-Christians might ascribe marriage to natural law or common law arising out of common sense and long-established tradition that pre-exists government.

Commentaries in the Marriage Series:

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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bride and groom sitting on outdoor bench with backs to the camera

A Really Hard Question: What Is Marriage Worth to You?

The last three weeks I’ve raised some hard questions that certain Christians—ministers, young couples, and future parents—are going to have to answer. This week I ask perhaps the hardest question of all, one all evangelical Christians will have to answer.

To resolve the questions I’ve asked, we have to get marriage and parental rights back on a foundation rooted in biological realities, which the Supreme Court rejected in Obergefell v. Hodges. We cannot argue for male-female marriage using the legal framework the Obergefell Court laid out. We have to go around (or perhaps, more accurately, “above” it).

Obergefell Governs Marriages Created by Government Statute

The framework on which Obergefell rests is the notion that marriage is something the state defines and licenses. Under that framework, the Court said, same-sex couples have a right to a state-issued license to marry.

But the Supreme Court has also recognized that there are other frameworks upon which marriage can rest.

Supreme Court Recognizes Non-Governmental Marriages

In Meister v. Moore, the Supreme Court said a couple could be lawfully married even if they did not follow Michigan’s statutes on marriage.

That was because those statutes “do not confer the right” to marry. The Court said the “leading purpose” of most states’ marriage statutes, at that time, was “to secure a registration of marriages” and provide “evidence by which marriages may be proved.”

The right of a man and woman to marry (and only a man and woman to marry) was, according to the Court, part of the common law.

Here’s why that’s important-common law is a framework for marriage different from that in Obergefell.

Common law then, as now, exists outside of, apart from, and prior to any positive enactments by the state. Common law is not government-created law but pre-governmental law governing our interactions with one another that civil governments merely acknowledge.

What Does This Mean?

It means that Tennessee should get out of the business of licensing marriages and allow the common law to govern the “creation” of marriage, meaning a man and woman can marry without getting the government’s permission. That takes the minister and the Christian couple out of the dilemmas I’ve mentioned. It makes common law spouses common law parents, addressing last week’s problem of parental rights.

In place of licensing statutes, the Legislature should enact a law like one currently in Texas that allows a man and woman to register their common law marriage so that there is evidence of the marriage. It is a law like the ones described by the Supreme Court in the Meister case.

Nothing in the Constitution or Obergefell requires states to enact statutes creating government-licensed marriages, and courts cannot constitutionally order states to enact licensing statutes.

But Won’t SCOTUS Just Redefine Common Law Marriage?

Perhaps, but eighty years ago, in Erie Railroad v. Tompkins, the Supreme Court literally said it was “unconstitutional” for it to tell a state what its common law is, and that case is still the law today.

Erie Railroad also said there was no substantive common law at the federal level. If the Court now wants to create a federal common law right to marry, then it, not the state, will need to administer this new federal form of marriage.

But Won’t Tennessee’s Supreme Court Just Redefine Common Law Marriage?

It shouldn’t. In 2006, eighty-one percent of Tennessee’s voters put this language in their Constitution: “[A]ny judicial interpretation purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee.”

Interpreting common law marriage to include same-sex couples is constitutionally prohibited.

If our judges so flagrantly violate the clearly expressed will of the people, then the people should demand that the Legislature remove them from office (which isn’t the same as impeachment) pursuant to Article VI, Section 6 of the Tennessee Constitution.

So What’s the Hard Question?

To take the legislative action I’ve proposed would bring down a super-sized North Carolina-style boycott. The LGBT groups can’t afford to let even one state take back marriage from the Supreme Court lest other conservative states follow suit.

So, here’s the hard question: Does the economy mean more to Christians than taking back our state’s control over marriage and having laws that reflect the real meaning and design of marriage? Will the “scorn” that group and even other states will cast on our state be too much to bear?

What we choose to do will show us what we really believe. How much is the future of marriage and the family in Tennessee worth to you?

Commentaries in the Marriage Series:

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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A father and mother hold the tiny hands of their infant son

How Long Before Parents Have to Be Licensed by the State?

The last two weeks we’ve talked about hard decisions Christians are going to have to make. If you are a young Christian couple or you have a child or grandchild who someday hopes to be a parent, then you need to read this. In the coming years, Christian couples who teach their child the “wrong” thing could have their parent’s license revoked. Never happen you say? Keep reading. The Constitutional groundwork has already been laid.

Last week, a judge in Ohio ruled in a parental rights case. The Washington Times headline about the case tells you all you need to know: “Religious Parents Lose Custody of Transgender Teen for Refusing Hormone Treatment.”1

That headline shouldn’t really shock anyone, given that the following was the very first sentence in the Supreme Court’s decision on same-sex “marriage,” Obergefell v. Hodges: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

As I’ve said for the past two weeks, the Christian understanding of humanity—as being male and female in the image of God and there being a real and meaningful difference between the two—was decisively rejected in Obergefell in the context of marriage.

That necessarily means that Obergefell’s worldview must now govern all other areas of law that flow from marriage, which necessarily includes parental rights.

What the Ohio case helps us understand is that Obergefell changed the rules upon which future debates about parental rights can be made. Parents can no longer argue, as they did in the Ohio case, that certain rights arise naturally out of biological kinship bonds formed through procreation.

Here’s why. Those kinds of bonds do not exist for both “parents” in the same-sex model for marriage that has now replaced the male-female model of marriage.

Furthermore, arguments implying that biology or biological kinship matter cannot be allowed because they would undermine same-sex “marriage.” If you don’t believe me, then you must not have heard about this other case from last week.

In this other case, a biological father tried to obtain custody of his child who was in state custody. His request was denied, but not because he was unfit. The problem was that he had only been the sperm donor who had helped the now derelict adults in a same-sex “marriage” have the child.

The Court said letting the biological father rescue his child would “expos[e] children born into same-gender marriages to instability for no justifiable reason other than to provide a father-figure for children who already have two parents.”2

In other words, any “two parents” will do and two is enough. A father doesn’t “add” anything to a child’s life, a thought I hope the men out there let sink in until Father’s Day.

Obergefell means that parenthood can no longer be grounded in biological, procreative realities.

That is why Yale law professor Douglas NeJaime wrote in the Harvard Law Review3 that the biological model of parentage must be jettisoned and a new model substituted for it based on the intention of a person to parent and the carrying out of functions related to parenting. But this converts parentage to only a legal status bestowed by civil government, not a relationship arising out of procreation between a man and a woman.

Moreover, in time, you can bet this power will be abused by the relativists in control, and they will conclude that parental status should only be bestowed on those whom they think worthy of it, namely, those whose style of parenting benefits the state. After all, the good economy we demand will justify it.

From there, it will be a short leap, logically, to the proposition that a state can and should license persons to be parents.

When that happens, don’t be surprised if Christian parents have to choose between losing their license or leaving out the Christian stuff the state thinks is harmful to the child, meaning harmful to the state. They shouldn’t think that biological kinship ties will protect them from the same type of disciplinary actions that other state licensees face if their Christian convictions become a problem for the smooth functioning of a well-ordered state.

Again, if you don’t want to believe me, just ask the “religious parents” in Ohio how their reliance on biological kinship arguments turned out last week. In the words of Obergefell, the state thought the right of their minor daughter to “define and express her identity” as a son trumped their rights as parents.

Licensing parents may seem far fetched, but fifteen years ago, people said the same thing about licensing marriages between two people of the same sex.


  3. “Marriage Equality and the New Parenthood,” Harvard Law Review, Vol. 129, No. 5, March 2016

Commentaries in the Marriage Series:

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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engaged couples

Should Christian Couples Get Legally Married?

I know that question sounds bizarre, but after what I wrote last week about whether Christian ministers should continue being agents of the state for legalizing marriages that state law defines contrary to God’s law, a couple of thoughtful people asked me how the line of thinking used there applied to Christian couples wanting to marry. My answer may just change the way you think of marriage.

By way of background, last week I said the Supreme Court’s same-sex decision in Obergefell v. Hodges did not expand the list of people who could enter into the historic institution of marriage and have that kind of marriage recognized legally. Rather, the Court constitutionally jettisoned the male-female kind of marriage for legal purposes and replaced it with one in which the sex of the parties is no longer an element of marriage.

The Questions the Law Raises

Applying these legal facts to the Christian couple who desires today to wed, this is the question the state now effectively asks them: Are you willing to agree to the state’s new definition of marriage and sign our forms that reflect that new definition of marriage in order to have a legal marriage?

Given that question, the couple must then ask themselves this question: Do they want a marriage the law will recognize badly enough that they will sign the forms?

Is It Just ‘Paperwork’?

Some may say that it’s just a matter of paperwork, and it’s what’s in their hearts that matters. But, as noted below, that argument can backfire.

Hard Choices in Scripture

You may say, “David, what choice do today’s Christian couples have?” Before I answer, let’s put this, and all the other hard choices Christians are going to have to start making because of Obergefell, into a scriptural context.

In John Chapter 6, we’re told that a number of people stopped following Jesus because some of His sayings were “hard.” Jesus then asked His disciples, “Will you also go away?” Peter responded, “To whom shall we go? Thou hast the words of eternal life” (John 6:68 KJV).

I picture Peter as being conflicted. Perhaps Peter didn’t like what Jesus had to say any more than the other folks, but he realized he did have a choice whether he liked it or not: Reject Jesus’ words or reject eternal life.

By sharing that story, I’m not saying one’s eternal life depends on how one answers the question I’ve posed. I, too, often cringe over the fact that the Lordship Jesus claims over His followers is not dependent on whether the choices He asks us to make are hard or easy.

What Are Christian Couples’ Choices?

So what choice do Christian couples have in this instance? The answer lies in the fact that there is nothing in the law that prohibits a man and woman from going before a minister and other witnesses and making public their covenant declaration of marriage.

In the eyes of God, is not their declaration before their minister and friends a binding marriage? Would not God hold them to their covenant vows, whether they had a certificate from the state or not?

You bet He does, and you bet He would. Just read what God says about marriage and divorce back before civil government started licensing marriages.

The point is religious covenant marriage ceremonies are not illegal. It’s just that the law won’t recognize that kind of marriage as having any legal effect.

This is where the it’s-only-a-piece-of-paper argument comes back to bite us. If the paperwork doesn’t “make” us married, but only what we do in God’s sight (and before witnesses), then why do Christian couples get a state license to marry?

Why Do Christian Couples Get ‘Legally’ Married?

What I’ve begun to believe is that there probably isn’t a real reason, other than our general call as Christians to obey the law. But obeying man’s law when it conflicts with God’s law is precisely the issue in this instance.

One reason we enter into a marriage that man’s law will recognize is that it does bring along a host of other laws and benefits.

It was those laws and benefits that were at the heart of the lawsuits by same-sex couples in Obergefell. They complained that those benefits were real and meaningful and being denied them because they could not marry. The Court felt obliged to them, but now the “benefits” shoe is on the other foot.

The Really Hard Question

Should Christian couples be willing to forego those state-afforded benefits in order to avoid participating in an unbiblical marriage scheme created by the state? Not an easy choice to make. But if those couples think that question is tough, wait until they consider what kinds of questions they may face someday when they become parents. That topic is for next week.

Commentaries in the Marriage Series:

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event