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Kavanaugh’s White House Swearing-In Ceremony

After weeks of nail-biting delays, FBI probes, protests, and death threats, Brett Kavanaugh was finally sworn in as Associate Justice of the U.S. Supreme Court on Saturday and again at an event at the White House on Monday.

Justice Kavanaugh fills the seat left open due to Justice Anthony Kennedy’s retirement. Interestingly, Kavanaugh was sworn in by Justice Kennedy for whom he once clerked.

Said Trump during the White House swearing-in ceremony, “I want to apologize to Brett and the entire Kavanaugh family for the terrible pain and suffering you have been forced to endure. Those who step forward to serve our country deserve a fair and dignified evaluation, not a campaign of political and personal destruction based on lies and deception. What happened to the Kavanaugh family violates every notion of fairness, decency, and due process.”

After taking the oath, Kavanaugh said, “I take this office with gratitude and no bitterness . . . Although the Senate confirmation process tested me, as it has tested others, it did not change me. My approach to judging remains the same . . . As a Justice on the Supreme Court, I will always strive to preserve the Constitution of the United States and the American rule of law.”

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screenshot of video featuring protesters banging on Supreme Court doors and a photo of Brett Kavanaugh's swearing in

Was Kavanaugh the End or Beginning of a Revolution?

As I watched video of people banging on the doors to the U.S. Supreme Court chambers while Justice Kavanaugh was being sworn in last Saturday, I couldn’t help but wonder, am I witnessing the end of the first American revolution or the beginning of a new one?

Over the last few years, I’ve heard talk about the beginning of a revolution in America, either a revolution against our current form of government emblemized by the protesters caught on video last Saturday or one instigated by those fed up with them. But I wonder if both views are wrong.

How to Define a Revolution

There are many ways one might determine whether a revolution is taking place. If a worldview approach to the question is taken, we must compare the worldview of those who we think may be revolting to the worldview of those who formed our social order and framed our civil government.

If the contemporaneous worldview is the same as that on which our social order and civil government were laid, then there is no revolution even though things may seem to be in turmoil. The turmoil, in that case, is just an outworking of the original worldview’s implications.

The Worldview That Defined the American Revolution

No doubt, most of our Founders had what Christians would call a basic Christian worldview. They believed in a Creator God, that rights came from that God and not the civil government, and that fallen (sinful) people were predisposed to liking autonomous power that they could corrupt and would corrupt to the extent possible.

So, they articulated the first two points in the Declaration of Independence and listed some of those rights in the Bill of Rights.

The third point they enshrined in the U.S. Constitution by creating a mixed form of civil government. They divided power between the legislative, executive, and judicial branches; created dual sovereigns in the form of state and federal jurisdictions; and provided various checks and balances in regard to the branches of government and the dual sovereigns.

Did the Founding Fathers Sow the Seed From Which We Now Reap?

But our Founders, particularly Jefferson and Franklin, were not immune from their own times and the influence of Enlightenment thinking, which exalted the power of man’s reason and minimized the effect of the biblical doctrine of the Fall on man’s reason. It made man’s reason autonomous and the need for revelation in the day-to-day affairs of man unnecessary.

We see this Enlightenment influence in the Declaration of Independence’s reference to self-evident truths. The signatories got the part about the source of rights correct but didn’t do so well in the part about truth being self-evident. The truths to which they held were only self-evident because they presumed the biblical story of Creation and the Fall.

As long as that presumption had rather broad currency among our people, then things proceeded without insurmountable upheaval. But all that changed when, in 1859, Darwin began to put the creation story to flight among the Enlightenment crowd and when it was no longer self-evident that one person should not own another as a piece of property. The Civil War ensued.

Then, in 1925, the Scopes trial prompted evangelicals (then called “Fundamentalists”) into a full-scale retreat. Many thought they could “protect” Christianity by relegating its truth claims to a personal, spiritual closet where what they believed didn’t have to do battle with the evolutionary streams of thought that had begun to infiltrate the natural and social sciences and the law.

Without God to constrain the conceits of autonomous reason (called “vain thinking” in the Bible), people were free to reason their way to anything. They could even divorce the thoughts of their minds from the objective realities about which their minds thought; in other words, someone like me thinking I am a woman despite what my biological reality tells me I am.

America’s ‘French’ Revolution Coming to a Head

The anti-God, Enlightenment thinking that fueled the French Revolution ended with its leader, Maximilien Robespierre, being subjected to the guillotine, and its terror was only brought to an end by the tyranny of Napoleon.

With respect to America, in 1959, historian Roland Van Zandt wrote, “America’s French Revolution has awaited the twentieth century.”1 And I think he was right, though off by maybe 75 to 100 years or so.

With the pounding on and screaming at the U.S. Supreme Court’s doors, an America revolution isn’t starting; the old one is headed into its final stages. I think what we’re seeing is the inevitable consequences of an error in our Founders’ thinking, though seemingly small in view of how much they got right, but error nevertheless—trust in the autonomous reason of man.

The question in my mind is whether the chaos that comes in the death-throe thrashings of that revolution will be greeted by a tyranny worthy of Napoleon or a reformation worthy of Luther in Germany and a great awakening worthy of Jonathan Edwards. I’m praying for and working toward the latter.

NOTES

  1. Roland Van Zandt, The Metaphysical Foundations of American History (Mouton & Co., 1959), p. 72.

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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Judge Kavanaugh with daughters, photo of wedding, and photo of a baby

Is Abortion Really THE Issue Regarding Kavanaugh’s Confirmation?

Over the last few weeks we’ve learned that Democrats fear and conservatives hope that Brett Kavanaugh, if confirmed to the U.S. Supreme Court, will provide a fifth vote to overturn Roe v. Wade, prevent a president (Trump, in particular) from being indicted while in office, and limit the deference that courts have been giving to federal agencies that expand government and grow the law by their rule-making power. But it’s what neither of them said is a fear or a hope that concerns me most.

I can’t count the number of times in recent weeks that I’ve heard conservatives, particularly Christian conservatives, say that the issue in regard to his confirmation is abortion, that it is the reason Democrats and political liberals have gone to such lengths to thwart his confirmation.

The Fear Not Heard

What I’ve not heard from Democrats is any concern that Kavanaugh would join the four dissenters in the Obergefell v. Hodges decision to overturn its rejection of the millennia-old understanding that marriage involves a man and a woman.

I suspect the reason we’ve not heard much, if anything, about this possibility, even from those who define humanity in terms of their sexual attractions, is that we’ve not heard much, if anything, about it from Christians, the one group that should have a strong theological reason for wanting to see that decision overturned. Why is that?

I’m tempted to answer by saying some not-so-charitable things about the leadership within the Christian community and the growing embrace of gay theology, but I will assume the best and attribute the silence to the fact that Christians don’t understand what Obergefell really did that makes Roe v. Wade pale by comparison. Yes, Obergefell is worse than Roe.

So, now I will tell those who have not been listening why that is so: Obergefell did not just impose on our nation a new understanding of marriage, it imposed a whole new understanding of what it means to be human, one that spits in the face of what God has said about those whom He created.

Redefining the Image of God, Not Just Marriage

When the Court eliminated the male-female aspect of marriage and de-sexed it, the parties to that marriage necessarily had to be de-sexed, too, at least in the eyes of the law. Humanity itself was reconstituted and recreated in androgynous terms for the purpose of marriage.

As a good friend of mine has said, when the human person is redefined with respect to the societal institution that has always anchored our understanding of what it means to be male and female, we have hit rock bottom when it comes to our social order.

In other words, Obergefell is not the beginning of a slide down some slippery societal slope, as if there remains a question of how much further down the moral abyss our social order will descend; rather, it is a question, as my friend says, of what will fly out from it. Picture what takes place when the blast from the rocket’s engine hits the base of its launching pad.

The speed at which the transgender rights movement has taken off since Obergefell is but one example. And well it should have because, after Obergefell, biological differences are constitutionally and legally meaningless.

Worse yet, because this unbiblical anthropology was cemented into our Constitution, no one will be able to escape its ramifications. In time, not even the institutional Church will escape from it, at least with respect to the preservation of its tax-exempt status.

If you don’t believe me, just ask Bob Jones University what happens to a Christian organization’s tax-exempt status when its religious beliefs about interracial dating, an activity not protected in the Constitution, runs afoul of constitutional rights and the constitution’s understanding of what it means to be human ethnically speaking.

Why Dred Scott and Roe Pale in Comparison to Obergefell’s Understanding of God’s Image

We must put Obergefell in context with other groundbreaking decisions regarding boundaries grounded in our understanding of what it means to be human and made in the image of God.

In Dred Scott, the Court denied the image of God rooted in the fact that He has made “of one blood all nations of men”1, and it substituted for that truth a false boundary between people based on levels of melanin in their skin.

In Roe v. Wade, the Court denied that we were “formed in the womb”2 and that even there we bore the image of God, and it substituted for that truth a false boundary based on the level of development or location between two biologically different and distinct human beings.

Obergefell denied that the distinction between male and female was required by God to fully express His image in us, particularly notable as the one place in the Creation story in which God stopped and said something wasn’t good. This is the most fundamental boundary from which future life springs (Roe) and the diversity of races has sprung (Dred Scott). It was abolished. Entirely.

Obergefell Will Undermine Life and Deny Ethnic Differences

Because of Obergefell, life in the womb will have to be cheapened. Children will increasingly be seen, at least constitutionally speaking, as those whose lives are manufactured artificially simply to meet the emotional and dignitary needs of adults in intrinsically sterile relationships.

And if biological ties are constitutionally insignificant for the purpose of the family, the most fundamental unit of society, then in time differences as to race and ethnicity cannot be constitutionally significant either. Those boundaries, too, are dependent on the continuity of biological reproduction, and besides, if we’re androgynous biologically, then logically that androgyny must be carried through to every part of our human identity. All of what it means to be human must change.

Comparing the Consequences of Denial

With Dred Scott we saw what happened when the image of God was denied; a horrible war tore us apart. Hundreds of thousands of American’s died, more than in any other war.

Since Roe v. Wade, we have seen what happens when the sanctity of life is denied; millions of our fellow Americans have died and been prevented from bringing to our lives the contributions they would have made as God’s image bearers. Now a culture of death, euphemistically known as “death with dignity,” is beginning to envelop us all.

Now, we will see what happens when the law constitutionally discards the image of God reflected in the distinctives of male and female. I suspect it will be much worse.

NOTES

  1. Acts 17:26. In the Greek, the word translated “one man” in the NASB version of this verse is actually εἷς αἷμα, which literally means “one blood.”
  2. Psalm 139:13

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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July 9, 2018 - President Trump nominates Judge Brett Kavanaugh for the U.S. Supreme Court.

The Weighty Issues Associated With Judging Kavanaugh

Being a “public figure” who has had to leave my home with my family because of escalating threats that ended with a death, emails using every profanity and expression of ill will I could conceive, and lampooning by cartoon editorialists who think they know me but don’t, my heart broke as I observed yesterday’s Senate Judiciary Committee “hearing.”

I know my experiences pale in comparison to what Dr. Christine Blasey Ford and Judge Brett Kavanaugh have experienced over the last ten days and in having aspects of their personal lives played out before a nation. It is easy for those who have never experienced any open and public vitriol not to appreciate the effect of such things on people in their zeal to achieve a certain desired political end.

I know there are those who would say I don’t care about people or certain communities of people because they are offended by the public policies for which I advocate and, because those policies run counter to their beliefs and practices, they take them as a personal attack. I understand that, and such comes with the territory.

Getting to the Truth

But we must remember that we will always have public policies touching on matters of human sexuality and thus, in principle, it’s as right for one side of a policy position to be offended and feel attacked as it would be for the other side. So, it is not personal in the same way as one person accusing another person of a particular sexual assault.

Dr. Ford’s accusation was a direct, personal charge of wrongdoing against one particular person, Judge Kavanaugh. If her recollection is accurate, she alone was the victim of sexual assault, and he alone was the perpetrator. If she is lying, then Kavanaugh is the victim of character assassination, and she is the perpetrator. And if her recollection as to the identity of the perpetrator is just an honest mistake, then there are only losers, Kavanaugh having the most to lose because he is now unemployable among a large percentage of those who would otherwise employ him.

I don’t think we’ll ever know which of the three scenarios is the truth. It would be easy for some to assume Dr. Ford has misidentified her perpetrator because none of those who she says were there recall the party, let alone the act, including her female friend. And those on the other side will have their reasons for explaining why none of those identified as being present or involved remember the event.

Furthermore, if the goal of further investigation by the FBI is to conclusively vindicate either Dr. Ford’s memory or Judge Kavanaugh’s character, then that is not going to happen. Justice Clarence Thomas has not had any allegations of sexual impropriety brought against him over the 26 years since he was confirmed, yet, as we’re now seeing, Anita Hill’s charges against him will always be associated with his name.

The Weightier Issues of Biblical Justice and Mercy

As I thought about how these matters could have been investigated in a more confidential manner to protect the innocent, whoever it is, and listened to the Senate wrangling over notations in a high school notebook over flatulence and vomiting in a high school yearbook, I couldn’t help but be reminded of the story in Matthew 23 in which Jesus condemned the Pharisees. Jesus noted that the scribes and Pharisees tithed beyond what the law required, tithing even the contents of their spice rack—mint, dill, and cumin. However, it wasn’t going beyond what the law required that Jesus condemned, but rather the fact that they “neglected the weightier provisions of the law: justice and mercy and faithfulness” (v. 23 NASB).

I believe Dr. Ford and Judge Kavanaugh really have been made pawns for the sake of a political matter in which at least some senators have made true justice and real mercy the victim. People who believe a wrong cannot ever be “lived down” and that “repentance” cannot be demonstrated by exemplary character for more than three decades have no concept of mercy. What they really want, assuming they really deep down believe a wrong was done 36 years ago and they are not just politically motivated, amounts to vengeance, paying someone back, and in that way, justice also suffers.

In the end, I couldn’t help but think of what the Psalmist said in Psalm 130:3, “If You, LORD, should mark iniquities, O Lord, who could stand” (NASB)?

May God save us from ourselves.


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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Silhouette of unknown governor, part of TN flag, and Supreme Court building

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.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.