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Will the Next Governor Challenge the Prevailing Myth?

As I was writing a brief last week for the Tennessee Supreme Court, I couldn’t believe some of what I said as my thoughts flowed through the keyboard and onto the page. What I wrote exposes a great myth held by a majority within our society, and I suspect the next governor will have to deal with it.

Can the U.S. Supreme Court Be Questioned?

The brief was in support of an application for permission to appeal. I was asking the state’s Supreme Court to hear an appeal from a decision by the Court of Appeals. The appellate court held that there were no uncertainties about the ongoing validity of our state’s marriage licensing statutes, even though the U.S. Supreme Court held in Obergefell v. Hodges that statutes like ours were “invalid” because they exclude same-sex couples from getting a marriage license.

It appears that this holding by the U.S. Supreme Court must be explained away, because that Court also held that same-sex couples have a right to marry under state law.

But how, my clients’ asked, does anyone exercise the right to marry if the existing licensing statute is “invalid”?

The Consequences of Blind Allegiance to the U.S. Supreme Court

It would appear that many in our society, including our governor and attorney general, believe the state must simply do whatever the U.S. Supreme Court says do, even if what it says we are to do can’t be done because the law by which it would be done is invalid.

Here is what I told our Tennessee Supreme Court:

[A great shift in the understanding of the separation of powers and the dual sovereignty embedded in federalism and the 10th Amendment] will come if states continue to assume that Obergefell stands for the proposition that the federal judiciary has the power under . . . the U.S. Constitution to require states to issue licenses for a wholly new type of legal relationship that has never before been licensed by those states and that its legislature refuses to authorize by new or amended statutes.

The Myth of Federal Judicial Supremacy Revealed

A well-credentialed lawyer-friend of mine who read the brief had this to say:

The tough issues you’ve raised require judges to set aside myths that they have believed because “everybody” seems to share the myth. The myth is that, if the United States Supreme Court says something, that is the law of the land, and every other court in the land just has to conform. Any statute or constitutional presumption or any common law that stands in the way just has to be conformed to the word from on high. This is horrifyingly frightening, but, probably, 90 percent of our colleagues at the bar believe this.

I suspect his estimation regarding the legal profession is correct. Just about every attorney I’ve spoken to about the lawsuit I’ve filed blew me off. If they did half listen, they said, “You can’t win. The Supremacy Clause means Obergefell is ‘the law of the land.’” Just as my friend said. That’s a scary response!

The Tyranny the Myth Unleashes

Consider what this flawed1 understanding of the Supremacy Clause means in light of the fact that the U.S. Supreme Court said the “right” of same-sex couples to marry was part of the “liberty” protected by the 14th Amendment. That “liberty,” the Court said, is why the state has an affirmative duty to issue marriage licenses to same-sex couples.

Here’s how I described in the brief the tyranny that results from this conjoined view of liberty and the Supremacy Clause (modified a bit for this context):

If the Supremacy Clause now allows federal courts to rewrite state statutes or create new types of legal relationships and then impose on every state a requirement that the relationship be licensed, there is no end and no limit to the scope of this new power in the federal judiciary. This power would essentially allow federal courts to use “liberty” under the 14th Amendment to obliterate at their whim both the dual sovereignty of federalism and the separation of powers between the judicial and legislative branches. That’s because the meaning of “liberty” under the state’s interpretation of Obergefell combined with this new understanding of the Supremacy Clause means federal courts now have the power to interpret “liberty” so as to now require positive, affirmative action by a state’s legislative body or circumvent that body’s constitutional prerogatives if it asserts its independence by not conforming its statutes to a command from a branch of the federal government that it thinks unconstitutional.

If the U.S. Supreme Court is allowed to get away with judicial edicts like the one in Obergefell, then, in the name of liberty, that Court will have destroyed the liberty that was to be protected by the Constitution’s separation of powers and creation of dual sovereigns.

Will the Next Governor Be Willing to Challenge the Myth?

This kind of power means the U.S. Supreme Court can just decide what laws it thinks every state needs for citizens to enjoy their “liberty,” and, if the next governor buys into the myth as did our current governor, then we’ll just bow down, go along with whatever the Court says, and disregard the fact we have a state legislature that has a jurisdictional power that must be respected.

I suspect that at some point over the next four to eight years, our next governor will be confronted with a situation in which he will have to choose between believing the myth or challenging it. If he has the courage to say “no” to the Court, he just might restore constitutional government for everybody.

NOTES

  1. It is flawed because the U.S. Supreme Court itself has said that the Supremacy Clause “is not an independent grant of” power to the federal government. Murphy v. N.C.A.A. “Instead, it simply provides “a rule of decision. . . . It specifies that federal law is supreme in case of a conflict with state law.” Therefore, a federal court decision is “supreme” only if it falls within the nature of the “judicial power” conferred under the U.S. Constitution to federal courts and the power is exercised in accord with the Constitution itself. Violating the separation of powers and federalism is not a constitutional exercise of the judicial power, and Tennessee’s Legislature has been right not to conform our statutes to the U.S. Supreme Court’s unconstitutional edict.

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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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Will I Lose My Law License?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

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

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