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Trump Picks Constitutionalist Brett Kavanaugh to Replace Justice Kennedy

On Monday night, President Trump nominated Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s open seat on the U.S. Supreme Court. How does Kavanaugh stack up as a conservative constitutionalist?

Some conservative voices, like the Daily Signal and Family Research Council, deem Kavanaugh a wise choice. Said FRC’s Tony Perkins, “Judge Kavanaugh has a long and praiseworthy history of judging as an originalist, and we look forward to having a justice with his philosophical approach on the Court.”

But there are other conservative voices that have some reservations. The American Family Association originally opposed Kavanaugh in favor of Judge Amy Coney Barrett but since Trump’s decision has opted to “allow the process to play out.” As AFA’s Bryan Fisher explains, “Kavanaugh has impeccable legal credentials but is undoubtedly an establishment guy. His commitment to precedent seems to make Roe immune to reversal for another generation, which may be why Susan Collins and Lisa Murkowski, for whom Roe is the Holy Grail, seem inclined to vote for him.”

While FACT doesn’t endorse candidates, FACT President David Fowler also expressed some concern but noted that being Catholic, Kavanaugh “might be a bit more constrained on religious liberty and abortion as the rest of the Catholics on the Court, other than Sotomayor. Maybe Alito and Thomas can keep him ‘catholic’ on those two issues.”

To judge for yourself, Alliance Defending Freedom has a thorough report card on Kavanaugh.

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Pray for Trump’s Supreme Court Pick

President Trump seems to have narrowed down his U.S. Supreme Court picks to replace Justice Anthony Kennedy. The three conservatives being considered are appeals court judges Brett M. Kavanaugh of Maryland, Amy Coney Barrett of Indiana, and Raymond M. Kethledge of Michigan.

Trump is expected to make an announcement about his final choice on Monday.

Whether the Senate will confirm the pick is still up for grabs. The votes of pro-choice Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) could determine the outcome of the confirmation vote, although there are pro-life Democrats who voted to confirm Justice Neil Gorsuch.

In the meantime, pray for the candidates and pray for President Trump and the Senate leadership that God would put the best person on the Court.

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Trump Looks to Fill Justice Kennedy’s Seat

Eighty-one-year-old Justice Anthony Kennedy announced Wednesday that he would be retiring at the end of July after 30 years as an associate justice of the United States Supreme Court.

As the Court’s swing vote, Kennedy was a key player in expanding both abortion and gay “rights,” particularly same-sex “marriage.” Said Alliance Defending Freedom President, CEO, and General Counsel Michael Farris about Kennedy’s retirement, “We respectfully disagree with those decisions where Justice Kennedy created ‘rights’ not found in or intended by the United States Constitution. . . . But we also praise Justice Kennedy’s insight and forceful celebration of First Amendment freedoms, his sensitivity to the danger of authoritarian government, and his refreshing desire to preserve and teach the necessity of freedom of speech to future generations.”

President Trump is expected to pick a replacement from a list of 25 candidates in the coming weeks. Trump’s last pick was conservative Justice Neil Gorsuch, who took the bench in 2017 and so far has taken a bold stand for conservative values.

The significance of this open seat has not gone unnoticed by either conservatives or liberals. In fact, Kennedy’s retirement has some liberals running scared. Slate writer Mark Joseph Stern summarized, “Abortion access, same-sex marriage, voting rights, environmental regulations—they’re all on the line now.” What could spell a crisis for liberals could spell victory for conservatives, depending on who Trump picks.

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David Fowler's wedding pictures

‘Marriage’ and My Secret Marriage Sign

Shortly after my wife and I married (36 years ago), we developed a way in which we could secretly express our marital love for each other. I would often use it when waiting to take the podium for a political event or when sitting apart from her in the choir loft at church. It was fun and cute, but I recently realized the deeper truth of what we were communicating. It brought home to me why people think two people of the same sex can marry, and why polygamous and polyandrous “marriages” must be around the corner.

The Evolution of the Secret

Without revealing the secret, I will tell you that it was grounded in a couple of ideas. First was our desire to distinguish our love for each other as husband and wife from the love we had for others who were part of our lives individually and as a couple. Second, it had to express our desire that God be a party to our marriage.

With that as the goal, the numbers one and three came to mind. One and three spoke to us of the Triune nature of God as understood by Christians, one in essence yet three in persons. But this understanding of God also defined our understanding of marriage.

My wife and I were two individuals, but by recognizing God as the Creator of marriage, we were, in a sense, introducing a third “person” into our marriage. In doing so, we were recognizing that marriage is a reality, a real-though-non-material thing. Marriage, for us, was something more than just the “aggregation” of two people for domestic purposes. It is what Moses communicated with the simple statement that the “two shall become one flesh.” There was a real unity of essence, despite the remaining physical individuality or distinctiveness of the two persons.

The Supreme Court’s Different Conception of Marriage

My appreciation for the substance of our secret means of communication registered with me a few years later as I tracked how the United States Supreme Court was reconstructing America’s views about sexual intimacy on its way to same-sex “marriage.” In this context, I put the word marriage in quotes for reasons I will explain, not because of ill-will toward its proponents.

The reconstruction of sex appears to begin with the U.S. Supreme Court’s decision to invalidate criminal sodomy statutes as unconstitutional in Lawrence v. Texas (2003), which, in turn, led to redefining “marriage” in Obergefell v. Hodges (2015) so as to include same-sex couples. However, both were grounded in Griswold v. Connecticut (1965).

The law involved in Griswold isn’t important, but the Supreme Court’s understanding of marriage in that case, explained seven years later in Eisenstadt v. Baird is important. This is how the Court described marriage: “[T]he marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup.”

In other words, the Court does not accept the view of marriage reflected in the basis for the secret communication my wife and I developed, namely, that marriage is itself a real thing—an “independent entity,” as the Court would say—distinct from the two individuals who marry. Or to put it in theological terms, the Court does not believe marriage is something transcending the two separate individuals who, in coming together, bring a real organic type of unity into existence.

Put another way, the Supreme Court simply sees marriage as an empty word—not reflecting a prescriptive reality, but merely describing an association or aggregation of two individuals, “each with a separate intellectual and emotional makeup.”

Why Marriage Is in Quotes

That is why I put marriage in quotes when I write about the form of marriage that the Supreme Court described. If, as the Supreme Court says, marriage has no real existence or prescriptive meaning, then offsetting the word with quotation marks is philosophically and grammatically correct when used by those, like me, who think it has a real existence. Grammarians call them “scare quotes,” quotation marks “placed round a word or phrase to draw attention to an unusual or arguably inaccurate use.”

Those who think marriage has no real meaning would say that there is nothing inaccurate or unusual about describing a marriage as an aggregation of separate individuals in a domestic setting who create no organic unity transcending their separate identities. They would say that “scare quotes” are not necessary because that’s what marriage is.

Their conclusion would be correct if we were talking about the same thing. But I use scare quotes to denote that when I speak of marriage, I am speaking of something completely different in essence and nature from what the Supreme Court spoke of in Obergefell v. Hodges.

If we want to understand what’s behind the contentions within our culture over marriage, we need to understand that we are talking about two different understandings of the essence and nature of marriage. Actually, we’re talking about two different understandings of the nature of reality: Is reality only that which is physical/material, or are there non-physical/material realities?

But I will say this: As long as conservatives argue for a definition of marriage limited to a man and woman based on the Supreme Court’s philosophical/theological conception of what that word means, then they had better be prepared for its next evolution, the aggregation or association of three people in a domestic setting. After all, there is no real reason “marriage” can’t be anything we want it to be; it’s not a real thing anyway, at least to the Supreme Court and an increasing number of Americans.


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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SCOTUS to Weigh California Abortion Challenge Case

The U.S. Supreme Court agreed to hear NIFLA v. Becerra, a First Amendment challenge to California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT), that forces pro-life pregnancy resource centers to instruct women on how to access abortion via the state’s Medi-Cal program. Centers are subject to $500 fines for the first offense and $1,000 for subsequent offenses.

According to Thomas Glessnor, founder and president of NIFLA, the issue is “Can the government impose and compel a faith-based ministry to proclaim a message that they are fundamentally opposed to with the risk of being fined or shut down?”

A hearing on the case has not yet be set.

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