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.

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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.


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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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.

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Marriage Debate to Continue

Last week the members of Tennessee’s Senate Education Committee were afraid to even discuss the so-called “bathroom bill” because it was too “controversial.” But the same could not be said this week for the members of the House Civil Justice Subcommittee when it came to the matter of the equally controversial Natural Marriage Defense Act. Chairman Mike Carter (R-Ooltewah) made sure the bill was fully debated by the committee in a civil fashion. Then the members amended it in a manner desired by natural marriage advocates and positioned the amended bill for debate next year if legal issues surrounding the Supreme Court’s decision in Obergefell v. Hodges are not resolved over the next few months by Tennessee’s court system. To learn more, read today’s blog post.

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Insemination Statute Repeal (SB 1153 / HB 1406)


Also known as the Insemination Statute Repeal, this bill repeals the statute that deems a child born to a married woman as a result of artificial insemination, with the consent of the married woman’s husband, to be the legitimate child of the husband and wife.


This statute is unnecessary because the Tennessee Code already provides for a presumption of paternity when a child is born to a married husband and wife. In addition, the state’s attorney general has said that the law is unconstitutional after Obergefell v. Hodges. This statute is being used by private litigants as a legal basis for arguing that it is now unconstitutional for the state to define motherhood and fatherhood in relation to biological considerations and procreation.


Hensley in the Senate, Weaver in the House


Full Text: Senate Bill / House Bill


No action taken in the House or Senate.