Constitutionality of New TN Marriage Law and Personal Repentance

Jul 19, 2019 by David Fowler

shot of the hands of a married man and married woman
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.

  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.

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