The hands of a married man and woman on top of a wedding bouquet

Will Tennessee’s Legislature Make the Same-Sex ‘Marriage’ Mistake Alabama Made?

If Alabama’s new law abolishing the issuance of marriage licenses was intended to circumvent the U.S. Supreme Court’s Obergefell v. Hodges decision regarding marriage, its Legislature utterly failed. Five years ago, some of Tennessee’s House members almost made the same mistake, and if they don’t get their thinking straight, I expect some to want to again follow Alabama’s lead. Here is why they should not.

Though the Alabama law passed just last week, it was initially proposed after the Obergefell decision in 2015. Obergefell held that it was unconstitutional for a state’s “enacted law and public policy” to license something as a “civil marriage” but limit the issuance of those licenses to two people of the opposite sex. Biological sex had to be irrelevant under a state’s enacted “civil” law.

Back then, some of Tennessee’s representatives wanted to follow suit, and I opposed that effort.

That proposed law did nothing but remove Tennessee’s county clerks as the official purveyors of a government license for a couple to enter into a legal marriage if the applicants were of the same sex. That’s all Alabama’s new law does, except that in Alabama, licenses are issued by probate judges, not county clerks.

What Alabama’s Law Actually Does and What Tennessee’s Would Have Done

Alabama’s law actually defined in state law for the very first time a legal marriage as a relationship between two people regardless of sex. Alabama’s Legislature actually voted to legalize same-sex “marriage.”

I doubt that was their intention, but if the only way to have a legally recognizable marriage in Alabama is to file what the Legislature requires and meet the conditions for filing, then the Legislature has defined what constitutes a marriage in Alabama and who the enacted law will recognize as having one.

Since the Alabama law does not require the two persons filing the statutorily required document for a legal marriage to be a male and female, that means being male and female is not a part of Alabama’s definition of a legal marriage. Defining a legal marriage without regard to a male and female is same-sex “marriage,” and that is what some of Tennessee’s representatives wanted to do.

Why Don’t Legislators Understand This Simple Logic?

While I don’t know the thinking of every Alabama legislator who voted for its same-sex “marriage” law, the problem is that too few legislators think outside the box when it comes to marriage, namely, the box that says marriage is something the state enacts in its public policy. That leads them to think that the Legislature must have a statute that defines and legalizes marriage.

But why would Christians in those civil government offices think that way when they protest against Obergefell on the grounds that God created and ordained marriage and that marriage as such existed prior to any positively “enacted” laws by civil governments?

It’s because their right thinking about marriage has not worked its way down into their thinking far enough.

In other words, Christian state officials who believe male-female marriage is a real thing, not a man-created thing, are stuck in the mindset that an adult man and woman cannot get married unless civil government gives them a de facto permission slip (license) to get married or, at a minimum, defines it for them.

Tennessee’s legislators simply need to repeal the marriage licensing statutes and let an adult man and woman enter into what the civil law has called for centuries a “marital contract.”

How Would a Man and Woman Marry Without a License?

What I’m saying is that a man and woman would marry the way they did it for centuries under the common law—a non-written type of “law” that precedes “enacted,” or statutory, written law. They would declare publicly their intention to be married as husband and wife, and then live as husband and wife.

I know that sounds rather loosey-goosey to those accustomed to the certainty of government paperwork, but that would only be true if one is playing loosey-goosey with his or her marital intention in the first place and wants to claim later he or she was never married.

So, to avoid widespread panic among those who like government paperwork and want to “nail down” the marital intention, the law would allow (not require) the happy and newly married man and woman to file a notice of their marriage with the county clerk and have the county clerk send that notice to the state for a statewide record of their private, non-government marriage.

Answering the Naysayers

I can hear the naysayers now: This is unheard of. This can’t work.


Texas allows couples to choose between a licensed marriage and an “informal” marriage, or what I’ve called a common law marriage; a few other states still recognize common law marriages. Federal law recognizes common law marriages.

Moreover, this type of private “transaction” coupled with a “public registration” system has worked for decades with respect to real estate. People don’t get a government license to sell their home, and people don’t get a government license to buy a home. A buyer and seller contract for the sale and purchase of a home, exchange a deed and money, and then register that transaction to provide notice of the arrangement to the public and third parties.

In fact, these naysayers fail to realize that marriage was considered a civil (as opposed to ecclesiastical) contract at common law, the same as that governing a buyer and seller of real estate, only the former was known as a “marital contract” and the latter was known as a real estate contract. Even the United States Supreme Court has acknowledged that a marital contract and registration procedure was common before states switched in the 1900s to requiring licenses. There is really nothing new here.

Tennessee’s Constitution Affirms Marriage as a Civil Contract

The right to contract is not itself a right created and bestowed by civil government. People have been entering into contracts before there were any “enacted” statutes governing contracts. That’s why, as far as civil law (not ecclesiastical law) was concerned, this private, non-government created and non-government licensed understanding and form of marriage was called a civil contract.

That’s also exactly how our state constitution understands and treats marriage: “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state.”

Alabama’s Constitution is much the same. Unfortunately, its Legislature didn’t appreciate the fact that there is no constitutional conflict between a man and woman exercising their right to marry under the non-government enacted common law and Obergefell’s holding regarding the right to marry under “enacted law.”

Alabama can fix its mistake next year; let’s hope that next year Tennessee’s legislators won’t make the same one.

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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Who will be the next TN House Speaker?

Picking the Next House Speaker

With the impending resignation of state Representative Glen Casada as Speaker, the question turns to “Who’s next?” As someone who has either served in the legislature or observed it from up close for 25 years, unless some particular things and attitudes change, nothing much may change other than the name on the Speaker’s office door. Here’s why.

My reason for saying so is this: As troublesome as some of the things were that came out, there was not much, if anything, that has not been true of the House for decades. So, if change is going to come, the same old same old will produce the same old result. It’s time to ask some hard questions.

The Two Questions That Need to Be Asked

The first question that I think needs to be asked and answered by House Republicans (only because there are too few Democrats to influence the outcome of the Speaker election) is this: Why does the House have recurring problems with corruption, sexual trysts, and authoritarianism regardless of who is Speaker?

And a second, related question is this: Is there something about the way the House (really, virtually all political bodies) goes about choosing a Speaker that contributes to these recurring problems?

To me, these two questions go together, and if we get the answer to the first question right, it might just serve to change the way the Republicans go about electing the next Speaker.

My Answer to the First Question—Worldview

The answer to the first question, in my opinion, is an out-of-favor word, “sin.” But don’t let that word put you off. In this context, I refer to the most basic sin of all, not particularities.

The most fundamental sin that lies at the root of all other particular sins is that which ensnared Adam and Eve—they lost sight of God’s authority over all things, and by eschewing an incredible delegated authority, they grasped for their own authority that, as creatures, it was impossible for them to have.

For the biblical perspective, because God is God and all else is creaturely, all authority on earth—at all levels and in all positions—is a delegated authority, and therefore a person with authority must understand that he or she is first under authority.

So, like Adam and Eve, the House Speaker holds only delegated authority, in this case, the efficient cause (as Aristotle would have put it) or we might say, direct or immediate cause, of which is a delegation (vote) by the whole body of the House.

But also like Adam and Eve, most Speakers aren’t content, at least for long, with only delegated authority. They begin to want to exercise authority over the members of the House.

So, I would advise the Christians in the Republican Caucus to look for someone who understands that having authority means being under authority. Any candidate who even smells like he or she wants to be in authority needs to be moved off the list.

But there is more. The ultimate cause, or what Aristotle would call the final cause, of the Speaker’s authority is God.

So, I would commend to the Christians in the Republican Caucus that they take off the list any candidate who does not readily recognize that he or she is foremost and in the ultimate analysis under the authority of God and, moreover, does so because it is evident from the person’s life (words are cheap) that he or she has somewhere along the line been humbled by the authority of God.

If the next Speaker doesn’t understand these two things, then that Speaker will be prone to abusing power. And abuse of power will lead to all kinds of particular evils.

However, if what is needed is a person who understands these things, then the Christians in the Republican Caucus may need to think about changing the process by which a Speaker is elected.

My First Answer to the Second Question—A New Process

Typically, people decide to run for Speaker, and there is nothing wrong with offering to serve.

But think about this: David of Israel was out in the field tending sheep while his brothers were being paraded before the prophet Samuel for his consideration as the next king of Israel, and Moses was a fallen-from-power nobody tending his father-in-law’s sheep. They were “drafted” by God to be leaders.

In other words, it just may be that the Christians in the Republican Caucus need to draft a person to serve, because the right person just may not be looking or clamoring to be Speaker.

However, the right person will have demonstrated the worldview and character qualities described above in fulfilling more “menial” responsibilities as a Representative. Like the shepherd David, who had learned how to slay the bear and the lion while guarding the sheep, this person may just be fitted to kill Goliath.

My Second Answer to the Second Question—A New Approach to the Usual Process

The problem, of course, is not in offering to serve vis-à-vis being drafted to serve, and my comments should not be interpreted to imply anything about those who have said they would like to serve or are thinking about offering to serve.

But, having been through caucus elections, I know the typical process of running means candidates getting on the phone, trying to line up votes. That’s when wheeling and dealing tends to kick in.

Too many candidates call and intimate if not outright say, “If you vote for me, I’ll do this” or the person being called asks, “If I vote for you, would you do this?” In my view, only a candidate who tells a solicitor of some favor “nothing” should be Speaker.

So, what if any Republican members who really believe they are being called by God to offer themselves for service as Speaker simply wrote a letter or sent an email to every member of the caucus stating why they are running, how they understand the responsibilities of that office, and how they would seek to fulfill them, and what qualifications and experiences, if any, they offer?

Then those “candidates” leave it at that. Make no phone calls (only answer a call). Offer to serve, but leave the matter in God’s hands, and then pray that His will be done.

After all, if a person is called by God to do something, does it really matter how many votes can be lined up ahead of time? I think not.

Will that put the candidate at a disadvantage to the candidate willing to make calls? Will it put the candidate at a disadvantage to the candidate making deals?

Worldly eyes would say yes. But is not this new approach a demonstration of the person’s belief that God is the ultimate cause by which His authority is delegated, and He can be trusted in how He works through the efficient or direct causes to bring about the delegation that will best accomplish His purposes?

To me, at least as a Christian, that would speak volumes about that person. It would tell me that God is central and fundamental to that person’s thinking process. That would be a real change.

But, says a Caucus member, I can’t make a “candidate” do that.

Really? What if a member or a group of members told the candidates that no phone calls from the candidate are needed or wanted but an email or letter like the one I mentioned will be appreciated. Be a cause for change!


If past sins of the House associated with a misunderstanding of the nature and source of authority continue, along with the ways in which the members decide how and for whom to vote, then don’t be surprised if the same old same old continues.

As former Lt. Governor John Wilder might have said, “A break from the past won’t come without a break from the past.”

Related Articles:

Casada, Cothren, Politicians, and Christians

Will the House Republican Caucus Avoiding Riding the Moral High Horse on Monday?

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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black horse and red elephant with TN stars symbol

Will the House Republican Caucus Avoid Riding the Moral High Horse on Monday?

As I continue to contemplate on the one hand the lascivious nature of the texts exchanged between the House Speaker and his Chief of Staff two years ago and accompanying issues of racism in the state House and, on the other hand, the moral outrage expressed by leaders on the Democratic side of the aisle, the image of the moral high horse comes to mind. I have ridden that horse myself, and here’s how I think it applies to the present situation, particularly the House Republican Caucus meeting set for Monday.

Dehumanization by Other Means Provides Democrats No Moral High Horse

No doubt, the way in which women and those with greater concentrations of melanin in their skin were spoken of in various text messages was dehumanizing. But I have to ask the Democratic leadership that has spoken so strongly to this scandal, What is more dehumanizing than calling a pre-born human being nonhuman in order to justify a unilateral decision by one human being to kill another?

Do those who allow the literal killing of another human being by saying he or she has no ethical or moral status at all really sit on a moral high horse from which they can righteously throw moral judgments at those who figuratively kill the image of God by dehumanizing words? I think not.

But, to me, the bigger question is whether the House Republicans will ride their own moral high horse out of their upcoming caucus meeting concerning this scandal.

Is the Moral High Horse Syndrome Avoidable?

A moral high horse is easy to mount and to ride. I’ve ridden one many times. I hope those who think I’m doing so now will read to the end before they judge.

The fact is we all get on our moral high horse at times, and perhaps we ride most high when we are commending ourselves for not being like those “other people” who seem to always be on their moral high horse.

The fact is we can’t escape making moral and ethical claims and judgments. And those who tell us not to judge others are, in fact, judging others in violation of their own standard.

So how, when circumstances require us to judge, as happens with public “scandals,” can we do so rightly without coming across as being on a moral high horse?

In my view, at least two things are required if one is to avoid riding the moral high horse.

A Right Standard of Judgment

The first is that there must be a true standard by which all judgments are made, one that applies to all of us, and that none of us get to make up and impose on others.

If we don’t have that kind of objective standard from outside of ourselves, then all we have is a collection of opinions that some among us, by a variety of means, will impose on others. That solves nothing. Those on whom that standard is imposed can always ask by what standard we are to judge whether the standard has been rightly imposed.

But that kind of standard necessarily brings God into the picture, and more people may dread that than they do those who are always riding on their moral high horse. God is, after all—and if you’ll pardon any seeming irreverence—THE Moral High Horse of all moral high horses.

Applying the Right Standard Is Counterintuitive

However, excluding God is actually the problem. That seems counterintuitive, but the God of the Bible is the answer to avoiding the moral high horse. After growing up in the evangelical church, I’m learning just how counterintuitive the true gospel really is.

A right view of God can do nothing but humble us, and humble us to the point that we feel like it would just kill us to admit, even to ourselves or to others, let alone when in politics to the public, some of the ways in which we fall short of the True Standard. But that’s exactly what we all need.

What’s counterintuitive about the gospel is that each time we are willing to experience one more of those deaths, we find a new life. We find that our appreciation for and understanding of the height and depth and width and length of God’s love and of His grace is in direct correlation to our level of humility. God resists the proud, but He gives grace to the humble. And grace is the second requirement for avoiding a ride on the moral high horse.

Applying the Gospel Tenor

Grace doesn’t change the standard by which a Christian is to judge, which is what some non-Christians now demand and what some Christians, understandably running from the legalistic moral high horses who may be in their church1, now espouse. Instead, grace should change the tenor of the way in which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out to others. It is in falling short here that I’ve most often mounted my own moral high horse.

How Will the Republican Caucus Respond?

The Republican Caucus will formally meet next Monday to judge or begin the process of judging whether Glen Casada is the person they want serving as Speaker, even if there may be no legal means by which he can now be removed. They are not judging whether he should retain his elected position as a representative nor whether he should be excommunicated from the Christian faith.

In my view, judgment as to whether he should remain as Speaker must begin by each of the non-freshmen Republicans searching himself or herself for the sins of commission or omission by which he or she may have supported a leadership team that over the recent years overlooked, allowed, or accepted not only the activities by staff that have now been exposed, but also such activities among one of its leaders.

Among the freshmen, they need to ask if they knew or consciously or subconsciously avoided knowing about the sex scandals of recent years and who the public figures involved were and make inquiries about the character of those persons in the present.2

Then, each needs to judge whether the existing Republican leadership in the House, from the Speaker on down, has demonstrated the marks of true gospel grace, forged from brokenness and humility before God, that will garner from the members a respect for the kind of moral and ethical authority that will be needed if the culture in the House is to ever change.

Absent a conviction among them that such has been demonstrated, it is my view that changes need to be made, but the members dare not ride out of that meeting on some moral high horse when they should be sorrowful and broken that changes would be needed in the first place.


  1. Here I’m reminded of my own failure for most of my life to understand the true gospel, thinking I had to “do” something to improve what Christ had done, even as the Christians in Galatia began to think they had to do something more—be circumcised or adhere to practices associated with the ceremonial laws of Moses. To such thinking, the Apostle Paul responded, “You have been severed from Christ, you who are seeking to be justified by law; you have fallen from grace (Galatians 5:4).
  2. When I was elected to the Senate, I’d never even met a senator other than the one I ran against and hadn’t been to the Capitol since a field trip in elementary school. But, over time, it became apparent to me that one of the members of the Senate was profligate, though I don’t know that I ever heard of the female staff member, lobbyist, and interns being preyed upon by him, though it may have happened. Perhaps I was naïve not to consider that possibility. Within my own Senate Caucus, though, I don’t think such predatory behavior went on. Not being the same person now as I was then, I can’t honestly say what I would have done had I known of such behavior, but in Ben Atchley and in Ron Ramsey I had leaders who I think would have addressed it had I gone to them.

Related Article: Casada, Cothren, Politicians, and Christians

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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Photo of the Tennessee House of Representatives and a silhouette of a man in a suit with a conversation bubble

Casada, Cothren, Politicians, and Christians

Earlier this year God broke and humbled me in a deeper and more profound way than ever before, yet it was deeply and profoundly life giving, too. As a result, the events of this week surrounding Tennessee’s House of Representatives, its Speaker, and his former Chief of Staff have weighed heavily on my heart. It’s not just because Speaker Glen Casada is a personal friend and I’ve met Cade Cothren; it’s much deeper than that.

I believe what is happening in our legislature reflects the heart-breaking state of what is called or passes for Christianity in our country.

Like profiling in politics or law enforcement, any broad generalization is sure to offend some, but all of us who profess to be Christian need to take a sober assessment of the situation in the House and what it says about us and what is being taught from our pulpits.

Why? Because almost all of those we’ve elected will tell you they are Christians. Most go to church rather faithfully. But with what we’ve seen this week from our Christ-professing legislative leaders, Democrat and Republican alike, I have to wonder why any non-Christian would find being a Christian attractive?

The False Separation of ‘Church’ and State

I know that some Christians (and non-Christians) reading this would say, “You are confusing the sacred and the secular. The House is a political body and not ‘the church.’” I understand that coming from non-Christians, but not from Christians. Such a statement reflects one of the greatest false dualisms in the history of Christianity. It draws the line between the secular/profane and the sacred between an ecclesiastical institution or hierarchy (a “church”) and that which is not within its narrow confines. So “church things” are good and important to God and politics is not.

It is this false and unbiblical dualism1, in contradistinction to what I often hear a pastor say rightly—“The Gospel changes everything”—that has led to the situation in the House.

The Cause of the Current Problems in the House

Having now dispensed with the aforesaid unbiblical limitation of God’s authority, we Christians need to consider what we read in James 4:1–10:

What causes quarrels and what causes fights among you? Is it not this, that your passions are at war within you? You desire and do not have, so you murder. You covet and cannot obtain, so you fight and quarrel. You do not have, because you do not ask. You ask and do not receive, because you ask wrongly, to spend it on your passions.

You adulterous people! Do you not know that friendship with the world is enmity with God? Therefore whoever wishes to be a friend of the world makes himself an enemy of God. Or do you suppose it is to no purpose that the Scripture says, “He yearns jealously over the spirit that he has made to dwell in us”? But He gives more grace.

Therefore it says, “God opposes the proud but gives grace to the humble.” Submit yourselves therefore to God. Resist the devil, and he will flee from you. Draw near to God, and he will draw near to you. Cleanse your hands, you sinners, and purify your hearts, you double-minded. Be wretched and mourn and weep. Let your laughter be turned to mourning and your joy to gloom. Humble yourselves before the Lord, and He will exalt you (ESV).

The Good Fruit of Painful Humiliation

But does not this Scripture passage in James conform to what Christians are told about the Christ we profess and into whose image God the Father desires to conform us?

Have this mind among yourselves, which is yours in Christ Jesus, who, though He was in the form of God, did not count equality with God a thing to be grasped, but emptied Himself, by taking the form of a servant, being born in the likeness of men. And being found in human form, He humbled Himself by becoming obedient to the point of death, even death on a cross. Therefore God has highly exalted Him and bestowed on Him the name that is above every name, so that at the name of Jesus every knee should bow, in heaven and on earth and under the earth, and every tongue confess that Jesus Christ is Lord, to the glory of God the Father (Philippians 2: 5–11 ESV).

Do we not see here the deep humiliation of Jesus before the world? And, by the word “therefore,” are we not told that His exaltation by the Father over all things was the necessary (or we might say “logical”) fruit of His voluntary humiliation?

So, why is being Speaker or, for that matter, a party leader or even a state legislator (or “respected cultural commentator”) so important? Why would we think these positions are a “thing to be grasped,” if in grasping them, we let go of, or worse yet, spurn the real glory that never ends and cannot be corrupted that the Heavenly Father has promised by the indwelling of the very Christ He has already glorified (Colossians 1:27)?

I suspect it is because the sin that still tempts us also still makes us prone to “exchange the glory of the immortal God” (Romans 1:23) for “friendship with the world” (James 4:4) and, in Jesus’ words, to desire “glory from one another [instead of] the glory that comes from the only God” (John 5:44 ESV).

Getting the Perspective Right

But this is the scriptural coup de grace that nails all Christians, me included:

Brothers, if anyone is caught in any transgression, you who are spiritual should restore him in a spirit of gentleness. Keep watch on yourself, lest you too be tempted. Bear one another’s burdens, and so fulfill the law of Christ. For if anyone thinks he is something, when he is nothing, he deceives himself. But let each one test his own work, and then his reason to boast will be in himself alone and not in his neighbor. For each will have to bear his own load (Galatians 6:1–5 ESV).

In Galatians, Paul has just explained the necessity of God’s grace because the righteous demands of God’s law are impossible for any of us to keep by human effort. So, “transgression,” even among professing Christians, is going to happen and we “deceive” ourselves if we think otherwise (1 John 1:8).

But unlike those who say grace allows the Christian to keep sinning so don’t worry about it (Romans 6:1) or to “wink” at the transgression by saying “there but for the grace of God go I,” restoration is needed, because we are supposed to love one another enough that we don’t  want one of our brothers or sisters in the faith to “fall short” of that real glory that awaits him or her (Romans 3:5–10, 23, 8:18).

Getting the Attitude Right Is the Key

But—and this is key—those who would see the transgression of a professing Christian and would seek to be a source of restoration need to remember that none of us are beyond doing that which we deem most heinous in others.

If we think that, then James says we “deceive” ourselves. We are thinking of ourselves as “something” and somehow better, particularly if our boasting is based on our supposed goodness compared to that of our “neighbor.” Before God, I will have to “bear” my “own load” of transgressions, because the true comparative is not my neighbor’s righteousness (or lack thereof) but Jesus’ perfect righteousness. That is why Christians are called to bear one another’s burdens, for some measure of transgression and our corresponding need of restoration is our lot until we are “set free from this body of death” (Romans 7:24).

In Conclusion

So, let all who name the name of Christ—preacher, layman, lobbyists, cultural commentator (me), and legislator—see this situation in the House—the grasping for temporal power and glory by individuals and parties by the means commended to us by the world—and for Jesus’ sake before a watching world “mourn and weep. Let our laughter be turned to mourning and our joy to gloom. [Let us] humble ourselves before the Lord” (James 4:9–10) and let Him decide who among us should be exalted, and we all know Who that is.

If that happens, then I suspect the situation in the House will resolve itself and the outcome will shock a watching world disillusioned with and put off by Christians and Christianity.


  1. The line drawn by the Bible goes from God right down the middle of every human heart and every human institution. But the type of line-drawing cited above is too often heard from today’s pulpits. Recently, a good friend said his preacher, in what most would call an “evangelical, conservative, Bible-believing” church, used the story of Jesus telling Pilate, “You would have no authority over Me, unless it had been given you from above” (John 19:11) as an illustration of Jesus “not caring about politics” and said Christians shouldn’t either. Really Jesus’ words were a declaration that all authority in the human realm finds its source in God to whom those who wield it will someday give an account. (See Acts 4:26–28; Daniel 4:30–37.)

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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Baby with a hat, symbols for male and female, and the Constitution of the United States

Tennessee Lawsuit Relies on the U.S. Constitution’s New ‘Dignity Clause’

Last week three individuals sued Governor Lee and his Commissioner of Health in federal court because Tennessee law does not allow individuals to change their sex on their birth certificate once they have figured out the “sex” with which they want to be identified. But the most telling and troublesome issue is this assertion in the complaint, “Tennessee’s Birth Certificate Policy . . . violates the United States Constitution’s guarantees of equal dignity.” When did dignity become something protected by the Constitution and what does this ‘guarantee’ mean?

Where, you might ask, could the plaintiffs have possibly gotten the notion that the equal protection provision in the 14th Amendment guarantees not equal treatment under the law, but equal dignity?

Equal Treatment or Equal Dignity?

To answer that question, we must first understand why a constitutional right to equal dignity is so important in a case like this.

The Equal Protection Clause was intended to ensure that persons were treated equally under the law. But law, of necessity, makes distinctions and discriminates. For example, we discriminate on the basis of age when it comes to voting and with respect to punishment for certain crimes (rape and child rape).

Thus, the real equal protection question is whether a particular law “discriminates” on the basis of some standard for which there is no rational basis between the standard and the object or purpose of the law.

For example, the birth certificate law applies to everyone and everyone’s birth is listed and recorded the same way when it comes to designating the newborn as male or female. The three plaintiffs are not being treated any differently than any other person born in Tennessee. Their legal treatment, under the law, is equal.

Consequently, in order to prevail on an equal-protection-under-the-law claim, the plaintiffs would have to convince the court that biology is an irrational basis upon which to distinguish between or classify people on birth certificates. But biological differences are not arbitrary and, thus, can’t be irrational if birth certificates constitute a historical record reflecting a biological fact at a certain point in time.

That, therefore, explains why the plaintiffs start using the words “male” and “female” interchangeably with the word “gender identity.” They must substitute the concept of a subjective mental state for a biological reality for equal protection under the law to make any sense to the average person.

But that argument is a bit shaky. The average person isn’t quite ready to think, “Wow, I never thought about the fact that my biological anatomy was, in truth, never related in any way to whether I was a male or female”—though that must be the goal of the “transgender” advocates if they want their ideology normalized.

So, to get around that problem, the plaintiffs have to get a court to look at a birth certificate as a document reflecting a correspondence between one’s subjective mental state and one’s outward appearance, not a historical record reflecting a biological fact.

That, then, explains why the plaintiffs refer to the birth certificate as a “critical and ubiquitous identification document used in many settings to verify an individual’s identity.”

They now want the court to equivocate between identity as in one’s current appearance and identity as in a biological reality at the time of one’s birth.

Why the ‘Equal Dignity’ Clause Is Important to Sex-Related Claims

Certainly, the legislature could create different kinds of documents to accommodate differences between biological realities and appearances. The birth certificate would continue to be a record of a historical biological reality, and the legislature could authorize another different document, say a driver’s license or government-issued “appearance certificate,” in order for a person looking at it (a police officer or TSA official) to know that the person presenting the license is the person on the license or certificate.

But getting the Tennessee Legislature to do something like that is an uphill battle, and it doesn’t get at what the plaintiffs really want—the abolition of laws based on objective biological distinctions and the eventual abolition of them in the broader culture. So, as liberals do, they run to the court to get what they want.

However, to get what they want, they have to cloak what is surely a political issue and not an equal protection under the law problem under some constitutional-looking justification that a liberal federal judge will swallow.

And that is where “equal dignity” under the 14th Amendment comes in.

Where Is ‘Equal Dignity’ in the U.S. Constitution?

We are now ready not just for the answer to the original question about where the notion of equal dignity under the law came from, but to appreciate the seriousness of the U.S. Supreme Court decision from which it sprang to which too few have given adequate attention.

The answer is found in the last three sentences of the United States Supreme Court opinion in Obergefell v. Hodges, wherein the Court said the following with respect to same-sex couples desiring to marry:

They [same-sex couples] ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

There you have it, a “right” to “equal dignity in the eyes of the law.”

Few understand that Obergefell had to be about equal dignity under the law because, again, all males and females, regardless of who they wanted to have sex with, were being treated the same way under the law.

So, to those who think Obergefell was only about whether Bob and Fred or Suzy and Sally could marry each other and get certain marital benefits under state and federal law, I urge you to think again.

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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