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Constitutionality of New TN Marriage Law and Personal Repentance

The other week I read in The Tennessean that the state’s lawyers did not satisfy a federal district court judge’s demand that they provide a “rational basis” for a new Tennessee law that bans ministers with online ordinations from performing marriages. To be honest, there really isn’t one. And that conclusion leads me to make public a personal confession I wrote to myself on April 26 of last year.

The Reason the ‘Online’ Minister Restriction Is Irrational

The reason there is no rational basis for prohibiting solemnization of a state-licensed marriage by a person whose “ordination” is granted via online submissions is that there no longer is any rational basis for state-licensed marriage itself.

The U.S. Supreme Court’s analysis in its 2015 Obergefell v. Hodges decision rejected the normative nature of marriage as male and female, which was based on a normative belief in the complementarity of two biological sexes.

But Obergefell treated marriage as a social construct, something we make up, instead of a real thing that civil laws only recognize and, in certain regards, regulate. According to Obergefell’s rationale, we can structure what it calls marriage any way we want, though only within such limitations as are permitted to us by a majority on the Court.

So, if marriage is not an objectively real thing, but something we make up and write into statutes, why does it need to be solemnized in the first place?

What about the objective nature of marriage can the state then protect from destruction or misuse by its licensure laws, other than perhaps minors who might marry without wisdom and parental approval? But the protection of minors doesn’t rationally require that the person overseeing the exchange of relational intention be ordained in a certain way or by a certain means.

Rationality is reason. Reason is the means by which we argue to valid or invalid conclusions from certain premises. So, if the premise is that marriage is a made-up thing, why can’t the qualifications for ministers as state-sanctioned marriage officiants be a made-up thing, too?

Let’s “get real” for just a moment—there can be no rational basis for the law in light of Obergefell’s rejection of objective realities regarding the nature of men and women

My Confession as a Christian Who Practices Law

Given that, what I wrote to myself on April 26, 2018, is relevant. It summarized my heretofore private reflections drawn from two books I’d finished reading, Joseph Story and the American Constitution and Idol’s for Destruction, and I hope it is helpful to others who are trying to make sense of what’s happening in law and our culture.

Charles Warren once wrote that we needed to:

[r]ecall that the words written by old George Mason of Virginia into the first Bill of Rights in this Country are still true, that: “No free government or the blessings of liberty can be preserved to any people but by . . . frequent recurrence to fundamental principles.” Our political system will break down, only when and where the people, for whom and by whom it is intended to be carried on, shall fail to receive a sound education in its principles and in its historical development illustrating its application to and under changing conditions.

Lord, as I was thinking about what I’ve learned post-law school about the “fundamental principles” upon which our law and Constitution were constructed compared to how we “do law” or think of law today, I can’t also help but think of what Herbert Schlossberg wrote in Idols for Destruction, “Idolatry in its larger meaning is properly understood as any substitution of what is created for the creator.”

If that is so, then by acquiescing without objection and challenge to the modern-day U.S. Supreme Court’s fundamental jurisprudential philosophy, have I not engaged in a form of Godless idolatry? Have I effectively been bowing down to man by accepting the positivistic view of law that now prevails in that sphere in which I work?

Oh, Lord, I can say as a matter of self-righteous justification that I have at least objected to the particularities of the jurisprudential reasoning employed in particular cases, like abortion. But still, I have effectively accepted an understanding of the nature of jurisprudence that is itself idolatrous in its exaltation of man as its source and in its reliance on sovereign human reason in place of reason understood in light of God’s Word.

How have I done that? By arguing in the past about the constitutionality of various pro-life legislative proposals only within the positivistic framework of law. How convenient to those who are opposed to having You over them that I was willing to limit my thinking and my arguments to the rules of positivistic law under their control and that they determine.

The bottom line, though, is that I confess I have lost sight of the bigger picture of what was happening in jurisprudence, because I was deceived into thinking of this process of change in the law from a biblical basis to a humanist, man-centered basis as only “secularization.”

It is, indeed, secularization, but, as Schlossberg writes, this “conveys only the negative aspect [of secularization]. The word connotes the turning away from the worship of God while ignoring the fact that something is being turned to in its place.Id. (emphasis supplied). I have put a positivistic, man-grounded, and man-centered view of law in place of that which is found in You as the Creator of all things.

My conclusion is this: I have been laboring for years in the “temples” of a false god, operating according to its theology without giving one thought to the matter of a reformation of the foundations of law itself. From that idolatrous thinking, I now repent.

Having Confessed, What Now for Me?

Having repented of arguing legal matters within a strictly positivistic, human-centered legal framework, I now have to confess that if I were to agree to operate within that framework, the online ordination law is irrational.

It can really only be rational if we return to a belief in an objective understanding of male and female complementarity and a belief that immaterial realities extend beyond such things as gravity to such a thing as marriage.1

That eventual re-formation is my goal and that explains why I cannot let go of challenging Obergefell and policies that deny the complementarity of the two sexes. For me to do otherwise would be idolatry.

NOTES

  1. This is not to equivocate on my earlier opinion that we need to do away with state licensing of marriages for an alternative means by which a marital relationship can be recognized in Tennessee. I mean only to say that a licensing law could be “rational” to ensure that those making a commitment to undertake the solemn obligations and responsibilities of a martial relationship understand the gravitas of that commitment by making sure that those who solemnize the commitment have a certain level of gravitas behind their credentialing.

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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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.

Hogwash!

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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Tanco v. Haslam Final Order and silhouette of a man with a question mark

Meet My Tennessee Political Hero

Political heroes are hard to come by these days. But there is a current officeholder in our state who tops my short list. In a lineup of random politicians, you might never suspect he’d be a political hero. Let me introduce you to him and tell you what he did.

Unlikely Looking Hero

My political hero is 77-year-old Bradley County Commissioner Howard Thompson. His formal academic education ended with his high school diploma (which only matters if your name is Lori Loughlin or Felicity Huffman). He drives a pick-up truck as part of his flea market business, not as a political “common man” ploy.

What makes him a hero is that he was willing to do something out of the ordinary that he knew would be misunderstood by most, including his fellow commissioners, in order to defend what he believes.

What My Political Hero Believes

Lots of Tennesseans and elected officials, including, I suspect, most of his fellow commissioners, believe like Commissioner Thompson. He believes:

• marriage is a relationship between a man and a woman,
• both the U.S. Constitution and the Tennessee Constitution should be upheld,
• the dual sovereignty of state and federal governments established and protected by those constitutions is important, and
• the separation of powers taught in eighth-grade civics means courts don’t make laws.

What Makes Him a Hero

But the difference between Commissioner Thompson and other political officials was his willingness to take a measured, strategic, and non-revolutionary state-militia-at-the-courthouse approach to defending those beliefs.

As a “lowly” county commissioner and citizen, he did the only thing he could do to defend his beliefs (and probably those of most of his constituents)—sue his own county’s clerk for violating the Tennessee Constitution by issuing a license for marriage to two people of the same sex.

Before you think that qualifies him for quack status, not hero status, read on. His understanding of basic civics and willingness to act on his beliefs is what separates him from other politicians.

Thompson Understood What Most Didn’t

Commissioner Thompson is a gentle, humble soul who would never impugn the integrity of his local county clerk or his fellow commissioners, but he understood the constitutional gravity of what began taking place the day the U.S. Supreme Court announced its decision in Obergefell v. Hodges.

That decision purported to say that the 14th Amendment prohibited state laws that defined a marriage as a relationship between a man and a woman.

Even if this conclusion is accepted, Commissioner Thompson intuitively knew that our whole state was acting lawlessly. The lawsuit proved him right, even though the presiding judge dismissed it last week.

Tennessee’s Constitution Is Being Ignored by All but the Commissioner1

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

He was proved right by the Final Judgment and Permanent Injunction issued by federal district court Judge Aleta Trauger after and as a result of the Obergefell decision in the same-sex “marriage” lawsuit that had been filed against the state of Tennessee, Tanco v. Haslam.

The second page of Judge Trauger’s order says, in full:

Article XI, section 18, of the Tennessee Constitution and Tennessee Code Annotated § 36-3-113 are invalid under the Fourteenth Amendment to the United States Constitution to the extent that they exclude same-sex couples from the recognition of their civil marriage on the same terms and conditions as opposite-sex couples, when their marriage was lawfully entered into out of state.

The “to the extent” language means the injunction applies only to the provisions of Tennessee’s laws that govern the state’s recognition of marriages “lawfully entered into out of state” when that out-of-state couple moves here.

Thus, the injunction does not apply to the provisions of the Tennessee Constitution and the referenced statute, Tennessee’s Defense of Marriage Act, that govern what laws the state can have for the licensure of marriages, the licenses being issued by Tennessee’s county clerks.

That means those provisions of our state’s constitution limiting the power of the state to license anything other than a marriage between a man and a woman are still in force. And those provisions will lawfully be in force until some judge enjoins their enforcement or the people vote to repeal the amendment.

Since neither of those things has happened, all of Tennessee’s county clerks are going beyond the statutory authority they have been given by issuing a license for a relationship called a marriage that is defined without regard to the biological sex of the parties.

And they are doing so in violation of the still-applicable provisions of Tennessee’s Constitution.

When Did Courts Start ‘Making Laws’?

I know some will foolishly say, “But the U.S. Supreme Court ruled. The Court legalized same-sex marriage. You can’t deny same-sex couples their rights.”

Such is foolish because they, including many lawyers and judges, have forgotten what Commissioner Thompson remembered from his eighth-grade civics class, “Courts can’t make laws.”

If a license for this new understanding and form of marriage is to be issued by the state, then the state’s legislative body must authorize somebody to issue it. Judges can’t, and county clerks weren’t.

By the express terms of Tennessee’s Constitution, county clerks’ duties can only be “prescribed” by the General Assembly.

But the General Assembly has never prescribed to our county clerks any duty to issue a license for a relationship defined without regard to the biological sex of the parties, even if U.S. Supreme Court now wants to call that kind of relationship a marriage.

If people would just think about it for a moment, they’d realize that being authorized by statute to issue a license for a relationship defined in terms of the biological sex of the parties is fundamentally and logically not the same as having authority to issue a license for a relationship defined without regard to the biological sex of the parties.

Commissioner Thompson understood these basic constitutional principles and he stood up for them, or at least he did until the judge said he didn’t have a right (“standing” is the legal term) to bring suit to stop this lawlessness.

Not in Vain

But, Commissioner Thompson, don’t despair. In the coming months, I trust you will find that your heroics have not been in vain.

If you now appreciate what Commissioner Thompson did and want to be part of stopping the lawlessness, let me know by sending an email to FACT Director of Communications Laura Bagby at laura.bagby@factn.org and be sure to put “Thompson” in the email subject line. Just don’t expect all your friends to consider you a hero if you do.

NOTES

  1. Actually, Commissioner Thompson’s pastor, Guinn Green, understood and joined him in the lawsuit, as did a couple of pastors and citizens who filed a similar lawsuit in Williamson County. But Commissioner Thompson is the only elected official among them and therefore the only one that risked any political heat.

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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Husband and wife holding baby shoes

Will Legislators Take a Consistent Approach to Abortion and Marriage?

Three bills filed in the General Assembly—two on abortion and one on marriage—point out how hard it is to find a consistent principle by which to govern. Here’s what I think needs to be done.

Two Approaches to Reversing Roe v. Wade

The two abortion bills would make it a crime for a physician to perform an abortion except in limited circumstances. All the legislative sponsors of the two bills want to see Roe v. Wade and its progeny overturned and authority of abortion matters returned to the states.

One bill is called the fetal heartbeat bill because it would make the criminal sanction and the limited exceptions thereto applicable once a child’s heartbeat is detected. The other bill would make the sanction applicable only after the U.S. Supreme Court “overrules, in whole or in part, Roe v. Wade” and its progeny, “thereby restoring to the states their authority to prohibit abortion.”

The fetal heartbeat bill seeks to push for a reversal of Roe by imposing a limit on abortion greater than any the U.S. Supreme Court has had to rule on in the past. The hope is that the new law will provoke a lawsuit that will, in time, wind its way to the U.S. Supreme Court and arrive at a time when the Court is willing to reverse Roe.

The second bill, known as a “trigger law,” imposes a limit on abortion only if the law of some other state is challenged and the decision, in that case, results in Roe being reversed.

There have been times when I thought the second approach was the only plausible approach. The Court was decidedly more liberal than it is today, the popular culture was not as pro-life as it today, and legislative bodies were not applauding infanticide legislation that outrages the sensibilities of an overwhelming majority.

If you think public sentiment can’t influence justices, then pretend you didn’t ever hear Justice Ginsburg say she thought America was now ready for same-sex “marriage.”

Pushing the Envelope on Roe

While the “trigger law” should be passed, these changes in the court and public sentiment have led me to think it’s also time to push the envelope and precipitate a situation that will require the U.S. Supreme Court to re-evaluate the constitutionally unsupportable rationale employed 40 years ago to support the decision in Roe.

Of course, the Supreme Court may continue to uphold the right to abortion, but it is very unlikely the Court will go in the direction of making it harder for states to enact abortion laws. The standard by which the constitutionality of abortion laws are now judged—Does the law unduly burden abortion?—is as low as it can go without the Court reducing the standard to the lowest possible standard—Does the law have a rational basis?

So, at this point, I don’t see much to lose other than simply losing. But not to try is a de facto loss anyway.

But notice this: Neither abortion bill seeks to “nullify” the Supreme Court’s rulings on abortions or tells prosecutors to ignore those rulings and prosecute abortionists anyway. Legislators know they can’t just ignore a bad decision by the United States Supreme Court.

Moreover, the fetal heartbeat bill is a testament to the fact that legislators know they must come up with some approach to abortion that has not been tested and ruled on yet in order to get a case back to the U.S. Supreme Court.

Legislators know that a bill treating Roe as a nullity would be slapped down as unenforceable by a federal district court and the decision upheld by the U.S. Court of Appeals for the 6th Circuit faster than Gov. Bill Lee can say to the state’s Treasurer, “Please pay the Planned Parenthood’s legal fees for having to sue our state.”

If legislators really believed they could nullify and ignore a U.S. Supreme Court opinion, surely legislators in our state would have done so any number of times between the 1973 Roe decision and now.

How This Applies to Marriage

But the reasons that lead legislators to look for ways to work around Roe and not just ignore it apply with equal force to the new bill on marriage.

That bill says, “No state or local agency or official shall give force or effect to any court order that has the effect of violating Tennessee’s laws protecting natural marriage.” Thus, it’s a bill purporting to “nullify” the U.S. Supreme Court’s constitutionally unsupportable decision on marriage in Obergefell v. Hodges, and it just won’t fly.

That’s not to say that nothing can be done about Obergefell. But the same principled approach to it must be taken as is being taken with the fetal heartbeat bill. I’ve been working on that principled approach and that work is almost done. Stay tuned.


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.

shape of United States filled in with American flag on striped background with words national news

Apple Bans Ministry App for Heralding Biblical Marriage

Apple removed an app from its app store that offers treatment for those with same-sex attraction because it deemed the app “homophobic.” Apparently, Apple was pressured to remove the app after the national gay rights group Truth Wins Out received a mere 365 signatures on its petition, calling the app “bigoted,” “hateful,” and “dangerous, homophobic garbage.”

Texas-based Living Hope Ministries, the Christian nonprofit that created the app, “proclaim(s) a Christ-centered, biblical world-view of sexual expression rooted in one man and one woman in a committed, monogamous, heterosexual marriage for life.”

The app, simply titled Living Hope Ministries, is still available for download on the Google Play store. It offers a selection of audio and video teachings, devotionals, and helps for family and friends.

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