U.S. flag and illustration of Abraham Lincoln

Needed: A ‘New Birth of Freedom’ That Will Scare the Left and Christians Alike

Though out of town last week during our observation of Independence Day, I couldn’t help but ruminate on Abraham Lincoln’s assertion as he surveyed the blood-covered fields of Gettysburg that we were a nation “conceived in liberty” and urged upon those gathered there a “resolve that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people shall not perish from the earth.” Was that freedom birthed, or do we need another one?

As I read about and participate in debates over “positive liberty” protected by the 14th Amendment (its protection of abortion, same-sex “marriage,” women going topless at the community pool) and “negative liberty” (not designing cakes or designing floral arrangements for certain weddings, not facilitating certain adoptions, not providing certain medical or counseling services), I’ve come to believe we need a serious discussion about liberty.

Fear of Liberty Among the Left

Many on the Left appear to be afraid of too much liberty. They claim a liberty to live any way they please, but to obtain that liberty, they restrict and threaten the liberty of all who disagree with them when it comes to our societal interactions. Their advocacy for a liberty at the expense of everyone else’s liberty shows they have an incoherent and inconsistent understanding of liberty.

Fear of Liberty Among Evangelical Christians

But, to me, it seems that many Christians have a similar problem. They are afraid of too much liberty because some on the Left (or perhaps simply some pro-LGBT business) may not serve them or might stop doing business with their businesses, at least in certain regards.

A Starting Place for the Debate

If we could all agree to eschew for a minute the chronological snobbery of modernism that says we know better than those who have come before us, I would like to suggest that we begin with a consideration of liberty as our Founding Fathers understood it and go from there.

A Short History on Liberty Leading to the Constitution

Some will dismiss the Founding Fathers’ understanding of liberty out of hand because of slavery and the legal and cultural limitations placed upon women and others who view themselves as a discrete minority. Such a reaction is natural and understandable, but because they didn’t get everything right doesn’t mean they got everything wrong.

Our Founding Fathers were knowledgeable of history; for the most part, wise; and largely operated out of a biblical ethic and understanding of the sinful nature of human beings. The context in which they framed our Constitution was that in which two institutions—the state and the Catholic Church—sought for centuries to exert authority over the other and over the whole domain of life.

But with the Reformation, John Calvin and those like Abraham Kuyper who followed in his train argued that the jurisdictions of civil government and the church were limited and that there was a third “sphere” within our human existence, that of various personal and interpersonal relations among private citizens. Clearly, there were struggles and tensions over the centuries related to how these three spheres overlapped and intersected, but there was now a “space” in Western civilization between the previous two dominating spheres.

Liberty Under the U.S. Constitution and Its Evolution

The United States may have taken the first best crack at balancing and defining those three spheres in the U.S. Constitution. It delegated only certain powers to the federal government that united the disparate states, leaving all residual powers and liberties to the states. It prohibited any particular religious sect from winning the patronage of the federal government. And the states then approved a Bill of Rights to affirm that the federal government had only delegated powers.

Here is the important part, though: The Bill of Rights did not extend to private interactions in that third, social sphere. There, liberty was to prevail.

In this, I believe they got the balance right, leaving it up to the people to regulate themselves and their interactions with one another. This was the liberty for which they were willing to give their lives, fortunes, and sacred honor.

There were, of course, criminal laws that encroached upon liberty; even a free people had to decide what abuses of liberty deserved criminal sanction.

However, over time, those free people began to use their liberty to enact laws that encroached upon liberties not in the nature of crimes that the majority thought were being abused in order to compel otherwise private interactions.

I understand that, too. If businesses wouldn’t let me eat in their restaurants, stay in their motels, or work for them simply because I was a Christian or because of where I worked, my natural reaction would be to “want a law” to “protect me.” And, to a very real degree, that is what Christians want when they insist on a religious liberty exemption from some of the proposed “civil rights” laws they don’t like.

And now everyone tries to use the law to bend others to their will in interactions with each other.

John Adams Got It Right and the Reason He Did

There is much more that could be said and needs to be said, but I suggest that the only resolution lies in the Liberty Bell’s inscription, “Proclaim LIBERTY Throughout All the Land Unto All the Inhabitants thereof,” taken from Leviticus 25:10. It suggests to us something important—that our Founding Fathers understood the fount and foundation of liberty to be a biblical ethic and biblical understanding of human nature.

President John Adams later put it this way: “Our Constitution was made only for a moral and religious people.” George Washington had earlier said much the same thing in his farewell address.

Throw out a transcendent source of ethics and a right understanding of human nature, and society soon degenerates into every person or group of persons for themselves against all the others. That much Thomas Hobbes got right in Leviathan, and that’s what America now seems to have.

What Would Lincoln Say to Us Now?

While our Founding Fathers did not apply that ethic correctly in all situations, I suspect they would say to us, and I think Lincoln would now say to us, “A new birth of freedom doesn’t require new structures of government and more laws, but better people living by a better understanding of the biblical ethic and human nature, and a better application of that understanding to the situations we now face.”

Of course, what Lincoln might say to us now is speculation, but it’s worth noting and pondering that more than four hundred years before his famous Gettysburg utterance, protestant reformer John Wycliffe said much the same thing: “The Bible is for the government of the people, by the people and for the people.”

I think the two were on the same page.

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.

Mom holding newborn

Is the Stare Decisis Really the Obstacle to Reversing Roe v. Wade?

Two United States Supreme Court decisions from last week bode well for the possibility the abortion precedents of Roe v. Wade and Planned Parenthood v. Casey could be overturned. They underscore why I believe a well-drawn and supported “fetal heartbeat bill” could do the trick, but only if fear of the unknowable is not the guiding principle in Tennessee’s state Senate.

On August 12 and 13, the Tennessee Senate’s Judiciary Committee will hear testimony for and against a “fetal heartbeat bill,” Senate Bill 1236, as rewritten by an amendment being offered by Sen. Mark Pody. Its primary obstacle among some in the pro-life community is the “not now” argument.

The ‘Not Now’ Argument Against ‘Fetal Heartbeat’ Legislation

The prevailing view among many pro-life organizations and a number of otherwise pro-life state senators is that there are not enough conservative justices on the U.S. Supreme Court to ensure the five votes needed for reversing its prior abortion precedents. They think one more conservative jurist needs to be on the Court in order to provide a “margin for error,” so to speak.

The legal point on which this particular argument against a “fetal heartbeat bill” rests is the judicially-created (not constitutionally mandated) doctrine of stare decisis, Latin for “stand decided.” The doctrine simply means that when a judicial decision has been made on a legal point, it should “stand decided” for all future cases that raise that same legal point.

In this context, here is the argument: The Court has for so long held that there is a right to abortion that the Court will not reverse itself.

I would have agreed with that analysis a few years ago based on the decidedly pro-abortion majority on the U.S. Supreme Court.

But pro-life advocates can’t ignore the current composition of the Court or last week’s rulings regarding stare decisis.

Positive Signals From Last Week Can’t Be Ignored

Twice last week, the more conservative-leaning Supreme Court considered claims that its constitutional jurisprudence interpreting the U.S. Constitution was wrong and that stare decisis needed to give way to getting its jurisprudence correct. In one case, the Court applied stare decisis and stuck with a 170-year-old precedent, and in the other, it rejected stare decisis and reversed a 34-year-old precedent.

What each had in common, however, and what was encouraging to me was the Court’s diligent search of history prior to the ratification of the U.S. Constitution to determine whether the prior precedent was correct.

This is a welcome return to an originalist approach to constitutional interpretation, a view that has too long been lacking on the Court. For example, the Kennedy-types on the Court too often rejected “history and tradition” to look for “new insights” as “we,” meaning the justices, not the people, “learn [liberty’s] meaning.” (All quotes are from Obergefell v. Hodges, a 2015 decision regarding marriage.)

Moreover, even in the decision last week that applied stare decisis to uphold a prior precedent, Justice Alito, writing for seven of the nine justices, said that it was “important” that the precedent “be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation.” Obviously, Roe and Casey are “constitutional matters” that “Congress cannot override . . . by ordinary legislation” as it could with only an erroneous interpretation of a federal statute.

There were a number of other encouraging statements made in the two cases that could be marshaled to make a credible argument that the Court may be ripe for reversing its abortion precedents, but doing so won’t overcome what I think is fundamentally at issue in trying to take a “fetal heartbeat bill” to the U.S. Supreme Court.

Getting to the ‘Heart’ of Opposition to the ‘Heartbeat Bill’

While there is nothing wrong with strategic thinking about the timing of one’s actions, Christians need to be careful that such thinking isn’t tantamount to thinking deep down that God needs us to make sure things are “lined up” for Him in order for Him to achieve His purposes or that He can’t be trusted to bring about the outcome that will achieve our purposes, as opposed to what His may be.

In the final analysis, when Christians say God is sovereign, this is what it means: “Whatever the LORD pleases He does, in heaven and in earth, in the seas and in all deep places” (Psalm 135:6, NKJV).

I don’t take this verse as license to “put God to the test” in the sense of a prideful arrogance (Exodus 17:7; Psalm 78:18) that puts forward arguments with no legal basis. But no one is saying that if we wait we might come up with better pro-life arguments.

Instead, I believe what is at the root of the opposition to even a well-drafted “fetal heartbeat bill” is a belief that a perceived contingency is fundamental for success: having only three liberal pro-abortion justices on the Court so that our odds of getting five votes are better.

However, this contingency is one over which the pro-life community will never have any control. It may never happen.

But here’s the good news: If pro-life Christian senators take Psalm 135:6 to heart, nothing is contingent to God.

An Example From History

Think, for example, of all the things that had to “fall into place” for Esther to be in a position to go to King Ahasuerus1 to save God’s people when her uncle Mordecai refused to bow down to the king’s advisor, Haman? If you’re not familiar with the story, it was a lot.

Similarly, if it is true that a sixth conservative justice is needed to find a fifth vote for reversing Roe, for all pro-life Christians know, God is already at work providing that sixth justice. Whether five or six justices lean our way in order to get the “win” we want is something I believe we need to leave up to God to determine and arrange.

We at least have five justices saying the right things about stare decisis and its limitations and looking at real history to determine whether prior rulings were correct.

Applying Judicial and Biblical Precedent

So, in this situation, I believe God’s people are called to do the right thing as best they know how and leave the results up to God.

And as for me personally, if the final results aren’t what I had hoped they would be, then Psalm 135:6 tells me to “check” my personal disappointment at the gates to God’s throne room; He has done as He pleased, and I will rest in that, knowing that all that He does is good and will lead to His glory.

If the U.S. Supreme Court can stop the God pro-life Christians worship from accomplishing what He pleases when we offer to Him by God-honoring means our best efforts to save the innocent unborn children of our country, then the real universal sovereign must be the U.S. Supreme Court. I’ll never be ready to concede that.


  1. In the Book of Esther, the king that Esther approached to save the Jews from the evil Haman is called King Ahasuerus in the ESV, HCSB, KJV, NASB, and NKJV versions of the Bible, a royal name or title used for Persian kings. The king is given the personal name, Xerxes, in the AMP, CEV, NIV, and NLT versions of the Bible.

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.

The TN Democratic Party Exposes Religious Liberty Gibberish

Last week I said that a religious liberty that means religious neutrality is impossible. And this week the chair of Tennessee’s Democratic Party proved me right.

The proof came in the form of a letter from the party’s chair, Mary Mancini, to the chief executive officer of Cracker Barrel wanting to know her thoughts concerning a certain church in Knox County that was using one of Cracker Barrel’s local restaurants for an event of some kind that the church had entitled “Small Town Soul Winning.” Ms. Mancini made it clear a church was involved and that her concerns arose out of one of the sermons from that Knox County church that had contained statements “against the LGBTQ+ community.”

I have no objection to her posing the question or even being upset on behalf of many within her political constituency. I did not hear the pastor’s entire sermon, but such portions as I did hear and later read sure seemed to miss the Gospel mark both in content and tenor.

But theological dissection of what was said and how it was said is not my purpose today. Rather it is to further the point made last week that there is no such thing as religious neutrality.

I harp on this hoping that some folks—even on “my side” of the sexual ethic question—will think more deeply about the true scope of religious liberty in a pluralistic society vis-a-vis a religious liberty that is essentially pluralism (and polytheistic) in its worldview.

Cracker Barrel’s Response Invites a Civil Rights Complaint

Upon receipt of the letter, Cracker Barrel’s CEO said the business disagreed strongly with the pastor’s statements and the church would “not be permitted on site.” That is where the law of religious liberty parading as religious neutrality was broken.

If the pastor and church were so inclined, it would be legally appropriate for the church and pastor to file a claim against Cracker Barrel and hold it liable for its actions for the same reason claims were filed by citizens in other states against Christian baker Jack Phillips and floral designer Barronelle Stutzman because they refused to provide custom services. And, unlike these Christians, Cracker Barrel is probably not being asked to provide any unique custom services to the church, just its regular “beans and cornbread” type menu. Follow the logic.

Why Wedding Cakes and ‘Pinto Beans and Cornbread’ Are the Same Thing

Jack Phillips was civilly prosecuted for violating a state law making it “a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . creed, . . . sexual orientation, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”

Mr. Phillips did not refuse to design a cake for the two men who wanted to purchase one “because of their sexual orientation,” but because of his religious beliefs about the nature of marriage. Those beliefs prevented him from creating something that celebrated as a marriage that which he could not, in good conscience, depict as marriage.

However, the argument against Phillips goes like this: The reason you won’t make the cake is “because of” your beliefs about “sexual orientation,” and therefore you would not have denied them wedding services “but for” your views regarding “sexual orientation.” I think that syllogism is flawed, but the courts have bought it.

Now consider the church. It is an organization with a “creed,” which, like Colorado’s law, is found among those things against which discrimination is prohibited under Tennessee’s civil rights law, Tenn. Code Ann. § 4-21-501. I know Cracker Barrel would say it didn’t “discriminate” because of the church and pastor’s creed, but because their speech was hateful. However, if the “but for” argument works against Mr. Phillips, it works for the church and pastor and has to be applied to Cracker Barrel.1

Has SCOTUS Weighed In Against Cracker Barrel?

Actually, that last thought reflects what the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission said in dismissing the claim against Mr. Phillips: The government can’t apply one standard to one commercial vendor under its law and apply a different standard to a different commercial vendor. The U.S. Supreme Court said in Mr. Phillips’ case that “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission” was in “indication of hostility” against religion in violation not just of a statute, but the First Amendment’s provisions regarding religion.

So, if a “but for” legal standard is to be applied to determine if there is discrimination based on sexual orientation, it also has to be applied to determine if there is discrimination on the basis of creed.

I think Cracker Barrel would have a hard time referring to a church and its pastor’s statements in a sermon and then arguing the church’s “creed” had nothing to do with denying it service.

I think it’s clear that the Tennessee Democratic Party and Cracker Barrel do not believe in religious neutrality and, I suspect, the party will put as much economic pressure on vendors like Cracker Barrel as they can in support of its constituents. The Cracker Barrels of the world do obeisance to their perceived monetary gods, because they can’t be neutral, either.

Religious Neutrality Is Not the Answer

Christians need to think a moment about what has happened: It was a sermon preached inside the four walls of a church that got this church excluded from receiving services from Cracker Barrel.

That Christians might disagree with the theology and tenor of the sermon preached is not the point. Rather, the point is that those Christians who want to retreat from the so-called “culture wars” and trust for their protection in a liberty law grounded in religious neutrality need to think again.

Christians of all people should know that trusting in the law to save them has never worked.2


1. No doubt, defenders of Cracker Barrel would say this was not just a meal but an “event” and the restaurant didn’t want to be associated with the event. But is not a wedding and reception an event? Of course.

2. The U.S. Supreme Court’s decision yesterday preventing the removal of the Peace Cross in a public space in Bladensburg, Md., does not change this point about religious liberty. That decision involved the Establishment Clause, which involves different constitutional issues.

Related Post:

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.

Barronelle Stutzman

Is the Demise of Today’s Version of Religious Liberty Needed?

Barronelle Stutzman is a florist in Richland, Wash., who is alleged to have violated that state’s law prohibiting her from refusing services to persons based on their sexual orientation. This week, the Washington Supreme Court upheld the judgments of lower tribunals against her, and now she is asking the U.S. Supreme Court to accept her appeal and reverse the decisions against her. But I sometimes wonder if a victory for religious liberty is, in the long run, the best thing for those who profess to be Christians.

It pains me on several levels to write that last sentence.

Why Thinking a ‘Religious Liberty Victory’ Would Pain Me

On a personal level, it pains me, because I’ve met Ms. Stutzman. She is a kind, gentle, sweet-spirited person. I don’t want to see her business bankrupted or even her income suffer because of this dispute over the law.

It pains me, because I do believe in religious liberty, though a more nuanced understanding of it in accord with our Founding Fathers than that for which many Christians advocate today. And this is why I think a victory on religious liberty grounds (as opposed to one based on freedom of speech/expression) may not be helpful in the long run.

Religious liberty is a colloquialism that hides from Christians an important truth: There can be no religious neutrality from God’s perspective, which is the perspective from which Christians are supposed to operate.

The Christian Myth of Religious Liberty as Neutrality

The first reason that is true is found in God’s declaration to the Serpent after seducing Adam and Eve into their rebellion against God, “I will put enmity between you and the woman, and between your seed and her Seed; He shall bruise your head, and you shall bruise His heel” (Genesis 3:15 NKJV). That is not neutrality.

The second reason is that religious neutrality is the cultural embrace of a polytheism, and God is not neutral in that regard, either. Read Acts 17:16–32. Paul’s message on Mars Hill to a polytheistic culture was, “Truly, these times of ignorance [in the past, prior to Jesus’ death, resurrection, and ascension] God overlooked, but now commands all men everywhere to repent” (Acts 17:30). It was not the modern-day evangelistic call to come forward if you happen to be interested in having your better life now or if you want to get control of X in your life; it was literally a command from God.1

Of course, Paul’s audience did not appreciate his message on Mars Hill, and it’s not tolerated today, either, even by many in evangelical churches and in their pulpits. People, including many professing Christians, like their liberty more than they like the biblical message of a sovereign creator God to whom His creatures and such liberty as He gives them are subject.

Given these facts, it is impossible, as I’ve written before, for religious liberty to work as an organizing principle within the social order.

Why The Emphasis Today on Religious Liberty?

But the sad thing to me is that many Christians of all stripes, though certainly not all, have retreated from the biblical position of advocating for laws that reflect what they believe to just defending and arguing for religious liberty.

Exhibit A is the Council for Christian Colleges and Universities recently leading the charge for accepting (and eventually accepting) the fairness-for-all proposal, because the proposed inclusion of sexual orientation and gender identity in federal law as a protected class carved out an exception for its members.

No doubt, some accept retreat to a supposed safe harbor of religious liberty because they believe they just need to hold out a wee bit longer because Jesus is going to rapture them out of here.

For others, retreating to religious liberty is either consciously or subconsciously a lot easier and a lot less costly in terms of lost friendships, diminished communal approval and acceptance, and deprivations of material wealth than challenging in the first place the enactment of the law from which they now clamor for a religious exemption.

I suspect those costs are in the back of the minds of many in the first group, too. Perhaps they believe they can escape the rich young ruler’s dilemma and plight (Mark 10:17–22) if they can just hold out a bit longer. Unlike him, they may be able to keep their “stuff” here and get to heaven to boot!

If Ms. Stutzman wins on religious liberty grounds, I will be personally happy for her. But if her victory perpetuates among Christians the belief that religious liberty is the saving bulwark against a God-denying culture carrying out its God-denying precepts with all its attendant consequences, then it will only have delayed the Christian’s understanding of the true nature of the conflict that exists in this world and the deceitfulness of the man-centered philosophy of religious liberty being espoused.


1. I get that the thought of God commanding us to repent sounds like the mad, angry, dictatorial kill-joy caricature of God that many have and that is often bellowed from pulpits. I get not liking the sound of that at all! But if preaching is all thunder and lightning about God’s wrath against sin and sinners and devoid of the incredible news that God freely offers to all the provision He has made out of His great love to bring peace between us and the inestimable worth of being in a present and eternal relationship with the most glorious of all beings, then that caricature is justifiable. See Thomas Chalmers’ The Expulsive Power of a New Affection. In keeping with Chalmers’ sermon, it just may be that loss of the perceived protection for religious liberty will so strip us Christians from our affection for the things the world offers in place of the glory of God, that we will return to our first affection—the love of God—as the church at Ephesus was exhorted to do (Revelation 2:4).

Related Posts:

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.

Young girl swimming in pool with googles on her head

Coming to the Rec Center Swimming Pool Near You

On February 15, 2019, the 10th U.S. Circuit Court of Appeals issued an opinion that gives a clear picture of the constitutionally required degeneracy that lies ahead if two U.S. Supreme Court decisions from the past are not dealt with soon and decisively. If you have young children or grandchildren, you better read what follows.

On that day, the appellate court issued an opinion upholding a federal district court’s temporary injunction enjoining enforcement of an ordinance adopted by the city of Fort Collins, Col., that banned women from exposing their nipples in public. The ordinance did not apply to men.

An organization named Free The Nipple-Ft. Collins was formed, and it then sued to have the ordinance enjoined as a violation of the equal protection provisions of the 14th Amendment.

A Justice That’s Literally Blind to the Obvious

The appellate court upheld the temporary injunction because the ordinance’s distinction between a man’s chest and a woman’s breasts was based on a “sex-object stereotype of women’s breasts.” Really? Are they saying that Playboy magazine and its ilk created from nothing that kind of stereotype in the human mind and injected it into the relations between men and women?

I guess so, because the Court then said:

that stereotype doesn’t stand up to scrutiny. Cf. People v. Santorelli, 600 N.E.2d 232, 236 (N.Y. 1992) (Titone, J., concurring) (‘One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.’); accord Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015); see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 850 (1992) (‘Our obligation is to define the liberty of all, not to mandate our own moral code.’).

Notice the two U.S. Supreme Court cases that the 10th Circuit understood to support its decision that women are constitutionally allowed to go topless in public if men are allowed to go topless: its decision telling states they can no longer enact statutes that define marriage in regard to the sex binary of male and female (Obergefell) and abortion (Casey).

What possible connection is there between abortion and marriage and constitutionally prohibiting women from going topless at the county recreation center’s swimming pool while young boys are around? (Yes, “recreation centers” were included under the now non-enforceable ban on female toplessness.)

The answer: The U.S. Supreme Court has redefined under the Constitution what it means to be human (abortion) and that logically opens the door to redefining what it means to be male and female (marriage without regard to the two sexes) for the purpose of civil laws.

‘Fleshing’ Out the Logical Progression to ‘Free the Nipple’

In Roe v. Wade, the predecessor to the Casey decision, the U.S. Supreme Court denied that a person for constitutional purposes existed in the womb, that even there the child bore the indelible image of God, and that the child was biologically distinct even from the mothers. It substituted for those truths a lie, creating a false boundary between two distinct human beings based on their differing levels of development or their physical location, giving the one the right to kill the other.

This blurring of what it means to be human and a person was necessary in order to advance an ethic of sexual liberty, to break the perceived slavish chains between sex and marriage.

Not surprisingly, the next step in the evolution of that liberty had to be the denial of the distinction and boundary between male and female, which is what Obergefell did in redefining marriage as part of the “liberty” provided by the 14th Amendment’s Due Process clause.

But think about that for a moment. If the very essence and meaning of a marital relationship is rooted in the complementariness of the two different biological sexes—male and female—then it would have been impossible for the Court to think that two people of the same sex could be married and have the same kind of relationship as that of a man and a woman. Thus, there could be no violation of equal protection under the law.

So, for those two biologically different relationship pairings to be the same, then the two biological sexes and their readily perceived complementariness had to become constitutionally meaningless and irrelevant. A belief that the two sexes are distinct and complementary is, in the 10th Circuit’s words, the “prejudice” and “unexamined stereotype” that Obergefell jettisoned.

Consequently, if we’re androgynous in the eyes of the law for the purpose of the one societal institution in which male and female was fundamental to its meaning and purpose, then how can we not be androgynous when it comes to a law prohibiting only women from going topless?

People and legislators who think Casey and Obergefell were only about abortion and who can get married need to think again. If they don’t, they may not like what they see going on around them in a few years. But by then, absent a constitutional amendment, they will not be able to do anything about it.

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.