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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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handshake

Working Across What Aisle?

Now that the election is over, the question in the minds of many is whether those elected are willing to “work across the aisle” with each other. Will Trump and Pelosi work across the aisle to govern? At his very first press conference, Governor-elect Bill Lee was asked if he would have any Democrats in his administration. But what is required if political partisans are to “work across the aisle”?

During a meeting I had last Friday with a group of African-American pastors, I had a concrete, demonstrable experience that crystallized for me my growing understanding that there is a different, more important, and significant “aisle” that will have to be crossed if we’re going to see work across partisan political aisles.

Finding a Unifying Political Topic

Because I was the only Caucasian invited to speak at this meeting and had held office as a Republican, I decided to talk to this group of black pastors about something I thought might unite us.

Consequently, I focused on why the United States Supreme Court’s decision on marriage, Obergefell v. Hodges, was the most important political and policy issue in the country and, more specifically, why it was actually worse for the black community than the Court’s Dred Scott decision.

I explained to them that, in Scott, the Court had only decided the meaning of the word “citizen” in the U.S. Constitution and had excluded blacks from citizenship. But when the Obergefell majority said that biological, sexual differences were no longer relevant to the one societal institution that had been anchored in that difference, it had effectively held that, as a matter of constitutional law, human beings do not bear the image of God that God said was reflected in the fact He made us male and female (Genesis 1:27).

Obergefell, I told them, was not as much the resolution of a legal issue—the meaning of the word “citizen” in a legal document—as it was an ontological, anthropological statement about the very nature of what it means to be human, in other words, what it means to be a “being” who is human as distinguished from other forms of being, such as animals.

The import of Obergefell became clear when I reminded them that many at the time of the Scott decision viewed blacks as non-citizens because they viewed blacks as something less than fully human.

The pastors to whom I spoke understood that erasing the image of God necessarily meant erasing the God in whose image we were made and that when God and the image of God were far enough removed from our memory, then slavery of some men by a majority of other men was justifiable.

Bishop Matthews Leaps the Aisle

With that as the setting, Vincent Matthews then got up to speak. Matthews is a bishop within the largest predominately black Pentecostal denomination in the country. He is in charge of his denomination’s Family Life Campaign throughout the world.

Bishop Matthews began by saying that in my explanation of Obergefell, I was “talking more black” than most black politicians, and then he launched into the issue of abortion and the devastation it was wreaking on the survival of the black community.

Bishop Matthews concluded by reaching across partisan aisles with this amazing statement (paraphrased from what I heard):

I will never vote for a politician that supports abortion. When people try to tell me how much help some pro-choice politicians bring back to the black community, I tell them that killing our people does not help our community.

The First Aisle We Must Work Across

In my remarks, I had told the pastors that the biblical line of demarcation between people, the real divide, lies not in skin color or party label but elsewhere.

The Bible tells us that God divides humanity by race in the only sense that matters to Him. The first race is composed of those who are only natural descendants of the first Adam, who God originally created. The second are those who are part of the new “race” descended from the Second Adam, Jesus, the God-man, by virtue of having been born again by the Spirit of God. (See 1 Peter 2:9, 1 Corinthians 15:45–47, John1:12–13.)

That is why Bishop Matthews and I were able to reach across the partisan political aisle on two fundamentally important and divisive “political issues.” We believe the really great and fundamental divide among human beings has been bridged by and a basis for unity has been found in the God-man, Jesus, who we both acknowledge as the only true Sovereign to whom all, including politicians and political parties, owe allegiance (Ephesians 1:20–21; Revelation 1:5).

When that basis for unity and that allegiance become more important than partisan unity and allegiance, when the proclamation and advance of the Kingdom headed by Christ are more important than touting and building a partisan community, and when His Word becomes the foundation for our policy “platform,” then we’ll find the problem of working across the political aisle greatly ameliorated. I look forward to that day.


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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gavel, portion of the Tennessee flag, and the U.S. Supreme Court

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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gambling cards and two champagne glasses with "groom" etched on them

Monday’s U.S. Supreme Court Decision Was a Federalism Doozy

This week the U.S. Supreme Court released an important Tenth Amendment decision, Murphy v. NCAA, that may have clear implications for the state’s lawsuit against the United States over the Refugee Act. It also might just overthrow the Court’s three-year-old same-sex “marriage” decision, Obergefell v. Hodges.

The Murphy case involved a provision in a federal statute passed years ago prohibiting states from “authorizing” any form of sports gambling. It’s important to note that this provision did not make sports betting a federal crime. Had it done so, the federal statute would have been directed against and regulated the activities of persons (individuals and individual entities), who can be subjected to federal laws.

But this provision was directed at limiting or controlling the powers of the state legislature to legalize or prohibit sports gambling. It was because the provision purported to bind a state’s legislature, not persons, that it raised a Tenth Amendment question.

Here is what six of the nine justices said in Murphy about why the provision was unconstitutional:

That provision unequivocally dictates what a state legislature may and may not do. . . . The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. [The federal law] “regulate[s] state governments’ regulation” of their citizens. The Constitution gives Congress no such power.

Here is the point: Congress can’t tell a state what laws it must have or what state laws it cannot repeal.

Application to Refugee Resettlement Lawsuit

In March 2017, the Tennessee Legislature sued the United States arguing that Congress’ regulation of refugees through private vendors under the Refugee Act placed a de facto requirement on the state that it affirmatively enact a state law—the state budget—that covers certain costs associated with that federal program.

The lawsuit isn’t about whether one likes or dislikes the federal program or likes or dislikes refugees resettling here. It is about the Constitution and whether the federal government has the power to make a state enact a law to pay for a federal program in which it does not participate.

Murphy should bolster the Legislature’s argument that where the federal government chooses to regulate, it must do so, and it can’t require the state to participate in any way in the federal program’s administration or funding.

Application to Obergefell

Given that the U.S. Supreme Court is a branch of the federal government, its powers, like Congress’, are limited. In 2015, the Court held that marriage was a fundamental right under the U.S. Constitution and states could not have a statute that limited the issuance of licenses to opposite-sex couples.

But why do states have to administer this federal right by enacting statutes to effectuate this federal right and by using Tennessee tax dollars to pay for the costs associated with administering those statutes?

Since Obergefell, it seems that state officials and most attorneys have assumed that the state must have a marriage licensing statute and that that statute must authorize the issuance of marriage licenses to any two people, regardless of their sex.

But if a branch of the federal government expressly given legislative functions under the U.S. Constitution, Congress, cannot forbid states from repealing a law or requiring them to enact a particular law, then how can the Supreme Court, which clearly has no policy or legislative powers, do that when it comes to effectuating the federal right to marry?

As in Murphy, the federal “law” in Obergefell appears to “regulate[s] state governments’ regulation” of their citizens!

This federalism issue was raised by Michigan’s attorney general during the oral arguments in Obergefell and all the justices missed the point—There is nothing, he said, in the U.S. Constitution that requires a state to license a marriage and no branch of the federal government can require them to do so.1

The Supremacy Clause Doesn’t ‘Save’ Obergefell

Thankfully, the Court flushed Congress out of the refuge to which attorneys unwilling to discuss the merits of Obergefell have retreated: the Supremacy Clause. Murphy rebuffed the argument that the Supremacy Clause provided Congress the power to bind the state’s legislature.

The Supremacy Clause, the Court said, only provides a “rule of decision” for the Court to follow when an otherwise valid state law conflicts with an otherwise valid exercise of federal power—the federal exercise of power trumps the state exercise of power. It is not a source of power by which an otherwise invalid exercise of federal power can be justified.

One More Lawsuit Is Needed

Perhaps the Legislature should file one more lawsuit. This time it should seek to enjoin the Department of Health from issuing marriage licenses to two people of the same sex, contrary to express language in our marriage licensing statute.

The argument is simple: Its legislative powers have been encroached on by the U.S. Supreme Court’s apparent requirement that it have a statute requiring state officials to administer a form of marriage that the Constitution of its state expressly prohibits it from recognizing, and it is the constitutional responsibility of either the Court or Congress to administer this new federal right. Neither can tell the state how to affirmatively regulate the conduct of their residents.

Of course, such an argument might just cause the Court to realize it made a mistake in Obergefell, in which case the Court could just chalk it up to “Murphy’s Law.”

NOTES

  1. The actual statement by the Michigan attorney general was, “If the State today decided to have no marriage, as some States have proposed, that wouldn’t violate a fundamental right. . . . [T]he Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by—by forcing them to recognize and give benefits to anyone.”

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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A father and mother hold the tiny hands of their infant son

How Long Before Parents Have to Be Licensed by the State?

The last two weeks we’ve talked about hard decisions Christians are going to have to make. If you are a young Christian couple or you have a child or grandchild who someday hopes to be a parent, then you need to read this. In the coming years, Christian couples who teach their child the “wrong” thing could have their parent’s license revoked. Never happen you say? Keep reading. The Constitutional groundwork has already been laid.

Last week, a judge in Ohio ruled in a parental rights case. The Washington Times headline about the case tells you all you need to know: “Religious Parents Lose Custody of Transgender Teen for Refusing Hormone Treatment.”1

That headline shouldn’t really shock anyone, given that the following was the very first sentence in the Supreme Court’s decision on same-sex “marriage,” Obergefell v. Hodges: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

As I’ve said for the past two weeks, the Christian understanding of humanity—as being male and female in the image of God and there being a real and meaningful difference between the two—was decisively rejected in Obergefell in the context of marriage.

That necessarily means that Obergefell’s worldview must now govern all other areas of law that flow from marriage, which necessarily includes parental rights.

What the Ohio case helps us understand is that Obergefell changed the rules upon which future debates about parental rights can be made. Parents can no longer argue, as they did in the Ohio case, that certain rights arise naturally out of biological kinship bonds formed through procreation.

Here’s why. Those kinds of bonds do not exist for both “parents” in the same-sex model for marriage that has now replaced the male-female model of marriage.

Furthermore, arguments implying that biology or biological kinship matter cannot be allowed because they would undermine same-sex “marriage.” If you don’t believe me, then you must not have heard about this other case from last week.

In this other case, a biological father tried to obtain custody of his child who was in state custody. His request was denied, but not because he was unfit. The problem was that he had only been the sperm donor who had helped the now derelict adults in a same-sex “marriage” have the child.

The Court said letting the biological father rescue his child would “expos[e] children born into same-gender marriages to instability for no justifiable reason other than to provide a father-figure for children who already have two parents.”2

In other words, any “two parents” will do and two is enough. A father doesn’t “add” anything to a child’s life, a thought I hope the men out there let sink in until Father’s Day.

Obergefell means that parenthood can no longer be grounded in biological, procreative realities.

That is why Yale law professor Douglas NeJaime wrote in the Harvard Law Review3 that the biological model of parentage must be jettisoned and a new model substituted for it based on the intention of a person to parent and the carrying out of functions related to parenting. But this converts parentage to only a legal status bestowed by civil government, not a relationship arising out of procreation between a man and a woman.

Moreover, in time, you can bet this power will be abused by the relativists in control, and they will conclude that parental status should only be bestowed on those whom they think worthy of it, namely, those whose style of parenting benefits the state. After all, the good economy we demand will justify it.

From there, it will be a short leap, logically, to the proposition that a state can and should license persons to be parents.

When that happens, don’t be surprised if Christian parents have to choose between losing their license or leaving out the Christian stuff the state thinks is harmful to the child, meaning harmful to the state. They shouldn’t think that biological kinship ties will protect them from the same type of disciplinary actions that other state licensees face if their Christian convictions become a problem for the smooth functioning of a well-ordered state.

Again, if you don’t want to believe me, just ask the “religious parents” in Ohio how their reliance on biological kinship arguments turned out last week. In the words of Obergefell, the state thought the right of their minor daughter to “define and express her identity” as a son trumped their rights as parents.

Licensing parents may seem far fetched, but fifteen years ago, people said the same thing about licensing marriages between two people of the same sex.

NOTES

  1. https://www.washingtontimes.com/news/2018/feb/20/religious-parents-lose-custody-transgender-teen/
  2. https://www.usatoday.com/story/news/nation-now/2018/01/30/sperm-donor-denied-parental-rights-child-same-sex-parents/1077662001/
  3. “Marriage Equality and the New Parenthood,” Harvard Law Review, Vol. 129, No. 5, March 2016

Commentaries in the Marriage Series:


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.

Invite David Fowler to speak at your event