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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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Baby with a hat, symbols for male and female, and the Constitution of the United States

Tennessee Lawsuit Relies on the U.S. Constitution’s New ‘Dignity Clause’

Last week three individuals sued Governor Lee and his Commissioner of Health in federal court because Tennessee law does not allow individuals to change their sex on their birth certificate once they have figured out the “sex” with which they want to be identified. But the most telling and troublesome issue is this assertion in the complaint, “Tennessee’s Birth Certificate Policy . . . violates the United States Constitution’s guarantees of equal dignity.” When did dignity become something protected by the Constitution and what does this ‘guarantee’ mean?

Where, you might ask, could the plaintiffs have possibly gotten the notion that the equal protection provision in the 14th Amendment guarantees not equal treatment under the law, but equal dignity?

Equal Treatment or Equal Dignity?

To answer that question, we must first understand why a constitutional right to equal dignity is so important in a case like this.

The Equal Protection Clause was intended to ensure that persons were treated equally under the law. But law, of necessity, makes distinctions and discriminates. For example, we discriminate on the basis of age when it comes to voting and with respect to punishment for certain crimes (rape and child rape).

Thus, the real equal protection question is whether a particular law “discriminates” on the basis of some standard for which there is no rational basis between the standard and the object or purpose of the law.

For example, the birth certificate law applies to everyone and everyone’s birth is listed and recorded the same way when it comes to designating the newborn as male or female. The three plaintiffs are not being treated any differently than any other person born in Tennessee. Their legal treatment, under the law, is equal.

Consequently, in order to prevail on an equal-protection-under-the-law claim, the plaintiffs would have to convince the court that biology is an irrational basis upon which to distinguish between or classify people on birth certificates. But biological differences are not arbitrary and, thus, can’t be irrational if birth certificates constitute a historical record reflecting a biological fact at a certain point in time.

That, therefore, explains why the plaintiffs start using the words “male” and “female” interchangeably with the word “gender identity.” They must substitute the concept of a subjective mental state for a biological reality for equal protection under the law to make any sense to the average person.

But that argument is a bit shaky. The average person isn’t quite ready to think, “Wow, I never thought about the fact that my biological anatomy was, in truth, never related in any way to whether I was a male or female”—though that must be the goal of the “transgender” advocates if they want their ideology normalized.

So, to get around that problem, the plaintiffs have to get a court to look at a birth certificate as a document reflecting a correspondence between one’s subjective mental state and one’s outward appearance, not a historical record reflecting a biological fact.

That, then, explains why the plaintiffs refer to the birth certificate as a “critical and ubiquitous identification document used in many settings to verify an individual’s identity.”

They now want the court to equivocate between identity as in one’s current appearance and identity as in a biological reality at the time of one’s birth.

Why the ‘Equal Dignity’ Clause Is Important to Sex-Related Claims

Certainly, the legislature could create different kinds of documents to accommodate differences between biological realities and appearances. The birth certificate would continue to be a record of a historical biological reality, and the legislature could authorize another different document, say a driver’s license or government-issued “appearance certificate,” in order for a person looking at it (a police officer or TSA official) to know that the person presenting the license is the person on the license or certificate.

But getting the Tennessee Legislature to do something like that is an uphill battle, and it doesn’t get at what the plaintiffs really want—the abolition of laws based on objective biological distinctions and the eventual abolition of them in the broader culture. So, as liberals do, they run to the court to get what they want.

However, to get what they want, they have to cloak what is surely a political issue and not an equal protection under the law problem under some constitutional-looking justification that a liberal federal judge will swallow.

And that is where “equal dignity” under the 14th Amendment comes in.

Where Is ‘Equal Dignity’ in the U.S. Constitution?

We are now ready not just for the answer to the original question about where the notion of equal dignity under the law came from, but to appreciate the seriousness of the U.S. Supreme Court decision from which it sprang to which too few have given adequate attention.

The answer is found in the last three sentences of the United States Supreme Court opinion in Obergefell v. Hodges, wherein the Court said the following with respect to same-sex couples desiring to marry:

They [same-sex couples] ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

There you have it, a “right” to “equal dignity in the eyes of the law.”

Few understand that Obergefell had to be about equal dignity under the law because, again, all males and females, regardless of who they wanted to have sex with, were being treated the same way under the law.

So, to those who think Obergefell was only about whether Bob and Fred or Suzy and Sally could marry each other and get certain marital benefits under state and federal law, I urge you to think again.


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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Does Tennessee’s Attorney General Suffer From a New Condition Called ‘Transetymologicalism’?

Tennessee Attorney General Herbert Slatery can’t seem to figure out the word “sex” when it comes to interpreting Tennessee law.

Yesterday, The Tennessean reported that Attorney General Slatery had issued an opinion stating that a law passed in 2000 and referring to “gender” but making no reference to “sex” included the modern-day concept of “transgenderism.”

In arriving at this conclusion, the attorney general ignored the fundamental canon of statutory construction that courts are “to give words the meaning they had at the time the document was adopted.” Eighteen years ago, no legislator (FACT’s president being one of them) thought they were codifying the unfamiliar modern concept of “transgenderism.” “Transgenderism” back then would have been considered the medical condition known as gender dysphoria.

What’s ironic is that the quote about statutory construction comes from a brief that Slatery submitted to the United States Supreme Court last year in a Title VII case, R.G. & G.R. Harris Funeral Homes v. EEOC, that he now relies on to justify change to the meaning of “gender” from a singular word embracing the concept of biological males or females to a word embracing “transgenderism.”

That the word “sex” is not in the statute he construed is itself evidence the Legislature intended the word “gender” to be an equivalent for the sex binary of male and female. Moreover, in a brief submitted to a state court, Slatery’s office said the word “gender” in another statute that actually governs the construction of statutes refers to males and females, his purpose there being to ensure our clerks issue marriage licenses to same-sex couples without any change in the wording of our licensing statutes.

When it comes to the meaning of words (known as etymology), it seems that Slatery suffers from a new psychological condition FACT’s president dubbed “transetymologicalism,” an irrepressible desire to give words a fluid meaning transcending their intended meaning depending on the outcome the user wants.

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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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