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Taking Three Tennessee Politicians to Task

As I read news reports this week about past conduct in which Gov. Bill Lee and Rep. David Byrd had engaged, my mind recalled something I witnessed a couple of weeks ago for only the second time in my life. That combination changed what I was going to write today about Tennessee’s attorney general, Herbert Slatery, and an opinion he issued last week.

Yesterday, The Tennessean ran a story about Gov. Lee’s participation 40-plus years ago in a college fraternity that hosted “Old South parties” and showed a picture of him in a Confederate uniform. Rep. Byrd remained in the news this week because he did at least something with a female minor 35 years ago about which he’s still haunted and for which he said he’d sought God’s forgiveness.

At the end of last week, Attorney General Slatery, a Republican, issued an opinion about how a statute should be interpreted. I strongly disagree with his analysis in a number of significant respects.

Nothing about the first two situations is unique to Republicans. Virginia’s governor has been accused of racism and Sen. Corey Booker has admitted to inappropriate sexual activity with a minor while he was a minor. And I have sure had sharp disagreements with opinions issued by Attorney General Slatery’s predecessors who were Democrats.

So, my comments should be understood to apply to all of these situations regardless of party affiliation.

Moreover, and most importantly, they apply to everyone reading this, including me. That’s because all of us, like Gov. Lee and Rep. Byrd, have done things, maybe as recently as this morning, that in hindsight we deeply regret. Most likely we’ve done some things in our past about which we would now be ashamed if they were on the front page of The Tennessean. No doubt, we’ve all expressed an opinion about which we’d now be embarrassed if its folly had been publicly exposed for all to see after being trumpeted by media outlets across the state.

But, when these things come out, we can’t just say, “There but for the grace of God go I,” and wink at what’s been done, particularly when we’re speaking of public officials, no matter how long ago. So what do we do?

Two Similar Situations With Different Results

That’s what brings me to the two situations I’ve witnessed within the church during the last twenty years. In both situations, individual members of the church had engaged in actions that were clearly contrary to the teaching of Scripture.

In one situation, the individuals acknowledged their actions and repented of them when approached privately and confidentially by the minister. They submitted to a lengthy discipleship and accountability relationship with some of the church’s elders. In time, healing and restoration took place. Few in the church even knew what happened because the goal was not to bring reproach upon them, but restoration.

The other situation came to my attention more recently. Year-long attempts by pastors and elders to have a person address actions contrary to Scripture were to no avail, so the pastors and elders told the congregation that a person had been removed from the church’s membership and would be excluded from taking communion should he or she attend the service.

No name was mentioned, because, again, their goal was not to bring reproach upon the person, but restoration. Breaking fellowship and exclusion from communion are called for in Scripture in order that the person might take seriously what he or she is doing, repent, and be brought back into a right relationship with God. Though punitive in a sense, its fundamental purpose is restoration.

Applying These Two Situations to Politics

These two instances are foreign to the world in general and to the world of politics in particular. In my experience, when we’ve never taken seriously just how far short we fall of the moral perfection of God and how correspondingly amazing the grace of a God who offers restoration is, we don’t know how to extend grace to others.

I suspect that may explain why some seem to take delight in looking for and bringing up things from 30 and 40 years ago and then go around asking what people think, implying (if not outright saying) people who have done “that” aren’t fit to hold office.

Oh, I can hear the voices now saying, “Sure, people can change, but that doesn’t mean they should hold office now.” And in that statement, I would submit that their lack of grace and understanding of grace is made manifest.

I suspect they would demand that God forget what they did decades ago (and even perhaps this morning), because it would be unjust and unloving of God if He did not do so, forgetting that they are doing to others exactly what they would indict and impugn God for doing.

Applying These Situations to Attorney General Slatery

I know what I am talking about, because I have had a woefully inadequate comprehension of both sin and God’s grace most of my Christian life, and even now that lack of comprehension raises its ugly head when I’m seriously wronged or someone does something I think is seriously wrong.

For example, I really wanted to rip into Attorney General Slatery and, to be honest, write in such a way as to intentionally make him look incompetent in your eyes for ulterior reasons that were mostly, if not entirely, political. But that’s what the world of politics would have me do; you know the saying, It’s nothing personal, it’s just politics.

However, God has a different, higher standard. He expects more from me, and as I’ve come to better understand God’s grace toward me, both my head and my heart increasingly want to give Him that more. So, I needed to hold off and rethink my goal in commenting on Attorney General Slatery’s opinion.

The Consequences of Graceless Politics

I close with the words of the Apostle Paul that prompted the change in my topic for today:

For all the law is fulfilled in one word, even in this: ‘You shall love your neighbor as yourself. But if you bite and devour one another, beware lest you be consumed by one another’ (Galatians 5:14-15 NKJV).

It seems to me that searching out a person’s distant past to make it current news or writing commentaries intended to tear down a person for the sake of political or partisan gain, particularly one who is clearly not what they once were, is pushing us toward a cultural cannibalism that will consume us all.

May God grant me the grace to push away from the table.


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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Does Tennessee’s Attorney General Suffer From a New Condition Called ‘Transetymologicalism’?

Tennessee Attorney General Herbert Slatery can’t seem to figure out the word “sex” when it comes to interpreting Tennessee law.

Yesterday, The Tennessean reported that Attorney General Slatery had issued an opinion stating that a law passed in 2000 and referring to “gender” but making no reference to “sex” included the modern-day concept of “transgenderism.”

In arriving at this conclusion, the attorney general ignored the fundamental canon of statutory construction that courts are “to give words the meaning they had at the time the document was adopted.” Eighteen years ago, no legislator (FACT’s president being one of them) thought they were codifying the unfamiliar modern concept of “transgenderism.” “Transgenderism” back then would have been considered the medical condition known as gender dysphoria.

What’s ironic is that the quote about statutory construction comes from a brief that Slatery submitted to the United States Supreme Court last year in a Title VII case, R.G. & G.R. Harris Funeral Homes v. EEOC, that he now relies on to justify change to the meaning of “gender” from a singular word embracing the concept of biological males or females to a word embracing “transgenderism.”

That the word “sex” is not in the statute he construed is itself evidence the Legislature intended the word “gender” to be an equivalent for the sex binary of male and female. Moreover, in a brief submitted to a state court, Slatery’s office said the word “gender” in another statute that actually governs the construction of statutes refers to males and females, his purpose there being to ensure our clerks issue marriage licenses to same-sex couples without any change in the wording of our licensing statutes.

When it comes to the meaning of words (known as etymology), it seems that Slatery suffers from a new psychological condition FACT’s president dubbed “transetymologicalism,” an irrepressible desire to give words a fluid meaning transcending their intended meaning depending on the outcome the user wants.

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Will Tennessee’s Attorney General Lead the U.S. Supreme Court Showdown?

This week, Tennessee’s attorney general, Herbert Slatery, joined the attorney generals in 15 other states in filing an amicus (friend of the court) brief with the U.S. Supreme Court. As I read the brief, I wanted both to cheer and spit nails. I hope these words will serve the salutary purpose of having Attorney General Slatery (“General Slatery”) correct an egregious constitutional error in another matter that will hasten the constitutional showdown needed between the states and the U.S. Supreme Court.

The Sixth Circuit Merges Biological Sex and Gender Identity

The brief submitted by the attorneys general asks the U.S. Supreme Court to hear an appeal from a decision earlier this year by the U.S. Court of Appeals for the 6th Circuit. The appellate court held that the word “sex,” used by Congress in 1964 when it enacted Title VII’s regulations on workplace discrimination, now includes “gender identity” and “transgender” status. To appreciate the egregiousness of this ruling, a little history is in order.

Before 1955, it was uncommon to use the word gender to refer to anything but grammatical categories. But the attorneys general’s brief notes that in 1955, a terminological distinction was for the first time drawn by sexologist John Money between sex as a biological reality and gender as a societal role. Thereafter, the use of the word gender as distinct from sex became increasingly common.

Consequently, I applaud General Slatery for signing a brief that rightly says:

[A]t the time Congress enacted Title VII, “sex,” “gender identity,” and “transgender” had different meanings. Given all of the above, the use of the term “sex” in Title VII cannot be fairly construed to mean or include “gender identity.” The Sixth Circuit erroneously conflated these terms to redefine and broaden Title VII beyond its congressionally intended scope.

The brief goes on to point out how this error by the appellate court undermines two key constitutional principles that the attorneys general rightly seek to protect.

Protecting State Sovereignty

By the following italicized sentences, the attorneys general’s brief stresses the fact that the 6th Circuit, by rewriting the law, essentially took away from the states the power to decide for themselves what laws should govern the definition of gender and transgender and the relationship of those concepts to discrimination in their state’s workplaces:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. States wish to safeguard the separation of powers undergirding our system of government, a system that encourages the States and the federal government to “control each other” through checks and balances. . . . Unless and until Congress affirmatively acts, our Constitution leaves to the States the authority to determine which protections, or not, should flow to individuals based on gender identity. The Sixth Circuit ignored this fact and essentially rewrote federal law, engaging in policy experimentation.

In other words, Congress did not mean to superimpose on the citizens of Tennessee definitions regarding gender and transgender and determine for us their relevance to workplaces in Tennessee, and courts can’t constitutionally impose that legislative policy on us.

Great job, General Slatery, for signing on to this!

Protecting the Legislative Branch’s Powers

In addition to protecting the sovereignty of the states from judicial encroachment, the attorneys general noted that the 6th Circuit had violated the division of powers that is supposed to exist between the legislative and judicial branches. The judicial branch is not to make public policy in its construction of a law.

To respect this constitutionally required separation, courts have long held that they must be very careful when it comes to interpreting words in law. The interpretation cannot effectively create a new policy, thereby usurping the Legislature’s singular power to determine policy. The Legislature or the people can always “fix” the policy in the law through the exercise of their own powers.

The attorneys general’s brief stated very clearly the two main principles of interpretation by which courts avoid violating the Legislature’s power over policy matters (numbers added for convenience):

Two primary canons of statutory and constitutional interpretation include the ordinary-meaning canon and the fixed-meaning canon. (1) The former canon instructs courts to give words their ordinary, everyday meaning, unless the context shows that they are to be used in a technical sense. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 326 (1816) (“The words [of the Constitution] are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”). (2) The latter canon directs courts to give words the meaning they had at the time the document was adopted. (emphasis supplied)

By the italicized words below, you’ll see why the attorneys general’s brief said the 6th Circuit’s interpretation of “sex” as used in 1964 was so wrong:

When Congress enacted Title VII, virtually every dictionary definition of “sex” referred to physiological distinctions between females and males, particularly with respect to their reproductive functions. . . . Even today, “sex” continues to refer to biological differences between females and males. See, e.g., Webster’s New World College Dictionary 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”). . . Clearly, a biologically-grounded meaning of “sex” is what Congress had in mind when it enacted Title VII, and that is what the public at the time undeniably would have understood from its plain language. (emphasis supplied)

Great job! Point them to the dictionary, General Slatery.

Hoisted on the Double Edge of His Own Petard

The strength and correctness of the preceding argument means its opposite would be weak and wrong. But that’s exactly what General Slatery did last December in connection with the U.S. Supreme Court’s interpretation of the U.S. Constitution and marriage in its 2015 decision, Obergefell v. Hodges.

Most regular readers know that I am pursuing two lawsuits in regard to the constitutional limits that must be imposed by the states on the interpretation that should be given to Obergefell relative to state law. The argument is simple: The U.S. Supreme Court may declare a state law unconstitutional, but it cannot order a state official to license what state law has not authorized that official to license and that state law, in fact, forbids that official from licensing.

Such an interpretation of Obergefell constitutes judicial legislation imposing duties on state officials, not a judicial judgment restraining actions by state officials. Judicial legislation must be opposed at every turn, even when it comes from a court that has the word “supreme” in its name. That Court is not supreme over other power in this country, and to treat it as such is an offense to both state and federal constitutions and the people who adopted them.

Destroying Tennessee’s Sovereignty and State Constitution

I don’t have space to detail the arguments made in these two lawsuits. But General Slatery knows that if Obergefell is treated as having no power to order our state officials to do something, even though our state constitution forbids them from doing so, and if our state courts give the words “male and female” and “man and woman” in our marriage licensure laws their real and intended meaning, then those statutes are invalid.

My response: So what, if that’s what a proper construction of the judicial powers given the federal and state courts means under their respective state constitutions!

Let the people of this state understand and then deal, in the manner they think best, with the consequences of the U.S. Supreme Court’s constitutional malfeasance in deciding that the millennial-old definition of marriage now violates the U.S. Constitution; that’s how constitutions of divided powers are supposed to work.

General Slatery, when the U.S. Constitution becomes meaningless as respects the extent of the federal judiciary’s powers, then every other power in the U.S. Constitution and those of the states is, in principle, meaningless.

Please don’t be dissuaded from the conflict over the power the U.S. Supreme Court purported to exercise in Obergefell because the underlying policy issue is controversial. Don’t let our state’s sovereignty under the U.S. Constitution be destroyed.

Insist, too, that our state courts acknowledge the limits of their own power under the state’s constitution. Stop telling them that they are free to interpret “male” to mean “female” and free to substitute into our statutes a relationship defined without regard to the sex of the parties for one the Legislature specifically defined with regard to the sex of the parties. That is not the judiciary’s job to substitute into policy an objectively different kind of relationship for the one that is in the law, and according to quotes in your amicus brief, you know that.

The showdown between the states and the U.S. Supreme Court and between the legislative and judicial branches is long overdue. So, I remind you, sir, as Patrick Henry said on March 23, 1775, to his fellow citizens as battle loomed with a different, though similarly tyrannical, power, “The war is inevitable and let it come! I repeat it, sir, let it come.”


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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Implosion of LifeWay's Draper Tower in Nashville and a photo of the Tennessee state Capitol under construction

Some Legislators Work Through the Implosion of their Ivory Tower

I recently watched a video of the implosion of the LifeWay Draper Tower, a Nashville landmark associated with the Southern Baptist Convention. In the video, you can hear the explosion rumbling deep below, but nothing is happening. Then a few windows pop out. Next, the first floors begin to cave in, but the top floor remains rather steady. Then it, too, collapses. This video reminds me a lot of what I saw at the Tennessee Capitol this week.

As I spoke with some legislators about bills touching on issues related to human sexuality, it was clear to me that their perspective is like that of the person on the top floor of the LifeWay Draper Tower after the explosion first went off.

As these legislators sit on the upper-level floors of their really nice new offices in the Cordell Hull Building, some can hear a rumbling outside—talk about the impact of the gay rights agenda and same-sex “marriage” on the family and religious liberty. But it’s just noise to a number of them, a distraction from their work on job creation and education reform.

But that noise is the implosion of the foundation on which the state’s long-term welfare rests. The collapse of that welfare about which so many legislators crowed so proudly after Gov. Haslam’s State of the State speech on Monday night will come, in time, as surely as it came to the top floor of the LifeWay Draper Tower.

That foundation was referenced the next night by, of all people, President Trump, whose policies so many Tennessee Republican legislators say they want to emulate at the state level. “In America,” he said, “we know that faith and family, not government and bureaucracy, are the center of American life. The motto is ‘in God we trust.’”

Trump was right. But while many Tennessee legislators will give echo to those words when they speak to their constituents back home, their echo often gets drowned out when they are in Nashville. Here is an example of what I’m talking about.

Right now, state Attorney General Herbert Slatery has fully bought into the “gender identity” legal philosophy, which says there is no longer any male and female, at least when it comes to family law.1 As recently as December 13, his office argued that a state judge should interpret the word “male” to also mean “female” in one of our marriage statutes. Last summer in Knoxville, his office argued that the word “husband” in a birth certificate statute must be interpreted to mean or include a “wife.”

Our attorney general is helping our courts implode the very legal foundation on which God’s design for the family rests and, thus, embracing a faith alien to the majority of Tennesseans who believe God has made us male and female. And to make matters worse, his office is bypassing our elected legislators by insisting that judges impose these alien views on us.

I’m sure Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan could not be prouder of our attorney general.

What our attorney general is doing, and doing without any accountability to the people or even to any group of people directly accountable to the people, has highlighted a problem with our state Constitution. The unelected justices on the Tennessee Supreme Court appoint our attorney general.

Given that our law schools teach those who become our justices that Constitutions are “living” documents, are those justices even going to think twice about appointing an attorney general who will advocate for giving them the power to set public policy by finding new rights in our state Constitution and by reinterpreting unambiguous words in our state’s statutes?

For that reason, along with a few other good reasons, Sen. Ken Yager (R-Kingston) presented to the Senate Judiciary on Tuesday a resolution to amend the state Constitution. Under the amendment, the Legislature, accountable to us, would appoint the attorney general, the same as they appoint the state’s comptroller, treasurer, and secretary of state.

Three Republican state senators said they would vote to send the amendment out of the committee to the Senate floor for a vote, for which we’re grateful, otherwise it would have died right them. But they said they wouldn’t vote for it on the floor.

It seems that there are a number of legislators who are content with a system that has given us an unaccountable attorney general who is blowing up in our law what even President Trump recognizes as our foundation.

Someday the implosion will reach the seventh floor of the Cordell Hull Building where a number of them now sit, unconcerned with the “noise” going on around them, and then they will wonder what happened.

NOTES

  1. Of course, only a fool believes that this androgynous view of human nature will remain confined to family law once the attorney generals of our states and our state and federal judges finish laying that view of human nature into constitutional cement. Why should male or female matter in the workplace or the locker room at the Y if it doesn’t even mean anything in connection with the basic institution of the family that has historically anchored our view of what it means to be human?

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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FACT President Commends Attorney General for Lawsuit

FRANKLIN, Tenn. (May 25, 2016) – The following statement regarding the decision of Tennessee Attorney General Herbert Slatery to join the lawsuit filed by the state of Texas and eight other states over Title IX can be attributed to FACT President David Fowler:

“Attorney General Slatery is to be applauded for taking affirmative action in response to the attempt by the Obama administration to use Title IX to tell parents that their children have to be exposed to a member of the opposite sex while in a state of undress. His office is doing exactly what it should be doing, fighting to protect the rights of parents to protect their children’s privacy and the right of our state to set its own domestic policies.

“It is particularly encouraging to see ten states joining North Carolina in suing the Obama administration for its outrageous overreach in using a mere ‘letter’ to change the law as it’s been interpreted for decades. This is the kind of unified pushback against the federal government that has been needed for years.

“With the Attorney General’s action today, the need for a special session to encourage the type of action that has been taken has been abated. Hopefully, the lawsuit will allow our state’s schools to operate in accordance with Title IX as it has always been interpreted without fear that they will be left to fend for themselves if actions against them are threatened.”

The Family Action Council of Tennessee (FACT), which Fowler heads, was formed in 2006 by a group of citizens concerned about the growing negative impact of public policies on marriage, families, life, and religious liberty. FACT’s mission is to equip Tennesseans and their elected officials to effectively promote and defend a culture that values God’s design for the family, for the sake of the common good. For more information, visit FACTn.org.

Media Contact: Laura Bagby, Director of Communications  |  Office Phone: 615-261-1338  |  Email: laura.bagby@factn.org