Do Refugee Opponents, Political Conservatives, and Evangelicals Really Want to ‘Save’ America?

Jan 10, 2020

Outline of United States filled in with the U.S. flag
Last week I wrote about the governor’s decision regarding refugee resettlement in relation to Congressman Mark Green’s national commentary that only federalism could “save America.” I said I didn’t think Tennessee’s elected officials or evangelicals understood the breadth of that challenge. Something I did this week tells me we will soon find out if they do. It has been a gut check for me.
 

My Letter to County Clerks about ‘Void and Unenforceable’ Marriage Licenses

 
This week all 95 county clerks in Tennessee received a copy of a letter from me, with a number of enclosures to back up what I wrote.
 
In sum, the letter said that no court had ever enjoined (i.e., legally excused) a county clerk from complying with this provision in Tennessee’s Constitution governing the issuance by them of marriage licenses: “Any policy, law, or judicial interpretation purporting to define marriage as anything other than the historical institution and legal contract solemnizing the relationship between one man and one woman . . . shall be void and unenforceable.”
 
Because of that provision in Tennessee’s Constitution, I wrote that the interpretation by county clerks of state statutes in a manner “purporting” to authorize the issuance of marriage licenses to two people of the same sex is “void and unenforceable” under Tennessee’s Constitution and that the interpretation could make “void and unenforceable” all marriage licenses issued since June 26, 2015.
 
Why is June 26, 2015, a Critical Date?
 
This section may look “factual” and, therefore, boring, like all the “begats” and dietary laws in the Bible, but it is critical to understanding the federalism problem. If you are a visual learner, then this video explains what follows in this section.

June 26, 2015, is the date that the U.S. Supreme Court released an opinion to support a judgment the Supreme Court did not enter until July 28, 2015.
 
Why is this difference between the opinion and its date and the judgment and its date important? Because the judicial power is exercised by judgments, not opinions. As will be explained below, opinions are not law. Opinions are not even the exercise of the judicial power; judgments are. Good lawyers know this; bad ones don’t.
 
Anyway, the Supreme Court’s July 28 judgment “reversed” the judgment of the U.S. Court of Appeals for the 6th Circuit, which had reversed the decision of four different federal District Court judges who, in Tennessee, Kentucky, Ohio, and Michigan, respectively, had held various laws in those states unenforceable as violative of the 14th Amendment to the U.S. Constitution.
 
After receipt of the Supreme Court’s July 28 Judgment, on August 17, 2015, the 6th Circuit sent an Order of Remand to each of the four federal District Court justices, saying, “In light of the United States Supreme Court’s decision, see Obergefell v. Hodges, 135 S. Ct. 2584 (2015), these appeals are remanded to the district courts from which they originated to allow further proceedings as necessary.”
 
Finally, on August 24, 2015, almost two months after the U.S. Supreme Court released its opinion, the judge for the U. S. District Court for the Middle District of Tennessee, having jurisdiction over a case brought by four same-sex couples married in other states against Governor Haslam to compel the state of Tennessee to recognize the legality of their marriages, entered its Final Order and Permanent Injunction.
 
The case is Tanco v. Haslam, which you’ve probably never heard of, but it is the only case in which the federal judicial power has ever been exercised against any Tennessee official relative to any marriage law in Tennessee.
 
Because the 6th Circuit had ordered the federal judge in Tanco to determine what should be done “in light of” the Supreme Court’s “decision,” the U. S. District Court for the Middle District of Tennessee properly recognized that the U.S. Supreme Court was of the opinion that the Due Process Clause of the 14th Amendment provided a nationwide “right to marry” regardless of biological sex, and, for that reason, the Supreme Court was of the opinion that Tennessee could not deny recognition to the same-sex marriages legalized in other states.
 
Therefore, the federal District Court judge’s Final Order and Permanent Injunction ordered Governor Haslam to recognize those out-of-state marriages as now valid under Tennessee law. It also permanently enjoined him from enforcing the provisions of Tennessee’s Constitution that prohibited him from recognizing under Tennessee law the validity of a same-sex marriage entered into outside Tennessee.
 
However, Tanco’s lawyers asked the federal District Court judge to enjoin all of and every aspect of the marriage provisions in Tennessee’s Constitution. The state’s attorney general rightly objected, and the court refused to enjoin any provision in Tennessee’s Constitution pertaining to marriage licensing. Why? Because it did not have jurisdiction over any county clerk, who actually issues licenses, and because no licensing statute had been challenged as unconstitutional.
 

Why Is My Letter a Big Deal?

 
What I wrote is a big deal because of this implication: All marriage licenses issued to same-sex couples since June 26, 2015, when the U.S. Supreme Court ruled in the case known as Obergefell v. Hodges, would have to be “void and unenforceable” under the above-quoted provision of Tennessee’s Constitution that no court has ever excused (i.e., enjoined) a county clerk or other state official from obeying.
 
Moreover, if the interpretation given to the law by county clerks makes the law itself “void and unenforceable,” then perhaps all marriage licenses issued since then, including to a man and woman, may be “void and unenforceable.”
 
Lastly, it means that they really should not be issuing any marriage licenses going forward.
 
This last point is not just my opinion, but also that of Gerard Bradley, a well-respected professor of constitutional law at Notre Dame for the last 27 years. You can read his opinion letter here.
 

What Makes This Biggest Abdication of State Sovereignty in Tennessee History

 
My letter should touch a nerve for every person who believes that freedom is protected by the existence of dual sovereigns and the concept of federalism behind it. Obergefell represents the greatest challenge to federalism since the U.S. Supreme Court decided Dred Scott v. Sanford in 1857 and, because of the potential for protest, it is perhaps the most controversial federalism issue since that time.
 
Here is how Tennessee has abdicated its sovereignty under the principles of dual sovereigns, recognized by the 10th Amendment.
 
Never before has Tennessee (or, for that matter, any state until Obergefell) acted as if the judicial power of the United States Supreme Court can force a state to affirmatively license something even if its legislature has not chosen to authorize that licensure.
 
Never before has a state official, in this case county clerks, issued a license for anything that state law has not authorized that official to issue.
 
Never before has a governor (Haslam in this case) or state attorney general effectively tried to prescribe duties to a county clerk in violation of the provision of Tennessee’s Constitution that allows only the General Assembly to “prescribe” their “duties.” See the Tennessee Constitution, Article VII, section 1.
 

The Federalism Bottom Line

 
By not just refraining from doing something a court said Ohio, Kentucky, and Michigan could no longer do, but by affirmatively doing something the provisions of Tennessee’s own constitution still prohibit its government from doing because no court has ever enjoined (i.e., legally excused) its officials from obeying it, Tennessee’s officials at every level [1] have knowingly or unknowingly engaged in the greatest abdication of a state’s sovereign authority to the federal judiciary in our nation’s history.
 

Responding to the ‘Supremacy Clause’ Argument

 
Space does not allow me to respond to all the uninformed comments made in the media by opponents. I think every legal question one could have is answered at this link found at GodGivemarriage.com, and those who care not one whit about marriage but care about constitutional government and judicial supremacy should study it.
 
However, I will address the one most used so far, the Supremacy Clause in the U.S. Constitution. Then I will pose the tough questions conservatives and evangelicals have to answer and how I answered them.
 
The Supremacy Clause does not apply to Supreme Court opinions. It makes only three things the supreme law of the land: the U.S. Constitution, federal laws that aren’t enjoined as unconstitutional, and U.S. Treatise. That’s it.
 
The Supremacy Clause does not say, “Oh, and U.S. Supreme Court opinions, too.”
 
And why not? Because “[t]he opinion of an appellate court is the explanation of what the court is deciding; it is not a legally operative instrument. The court’s formal action is embodied in its ‘judgment,’ a separate document directing the disposition of the case.”[2] Courts do not make law.

Those who yell about the Supremacy Clause are a lot like Justice Breyer, who made the same mistake of thinking Supreme Court opinions and the Constitution were the same thing in one of his dissenting opinions. Justice Scalia rebuked his colleague as follows:
 

Justice Breyer proceeds on the erroneous and all too common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.[3]

 
Am I alone among lawyers in this view? No, sixty law professors and legal scholars issued a fabulous and succinct statement on this point soon after Obergefell entitled “Statement Calling for Constitutional Resistance to Obergefell.” They said,
 

We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution.

 
I am presently working with four of the law professor signatories.
 
So, while the U.S. Supreme Court can say the federal Due Process Clause now controls the issue of marriage—who can marry and how marriage is to be defined—as opposed to state law, which had historically been the case, the Supreme Court has no power to authorize, let alone demand, that county clerks issue licenses for a marriage defined without regard to sex.
 
And the same was true for Governor Haslam when the Obergefell decision came out: He had no constitutional authority to tell county clerks to issue a license for a federal due process marriage. Again, this short video explains the constitutional mess created by Governor Haslam that Governor Lee and the legislature will soon be asked to fix.
 

What is in Store for Tennessee if Congressman Green is Right and His Federalism Challenge is Accepted

 
All of the above rest on firm constitutional grounds. All of this and more has been provided to the governor and his staff in connection with the petition filed in December with the Department of Health by a group of pastors. So, as to him, my opinion and this commentary are not coming out of left field.
 
But here is what he, along with all Tennesseans who consider themselves either political conservatives, evangelicals, or both, need to fully appreciate:
 
If Governor Lee decides that his oath of office means he has no power to disregard the Tennessee Constitution, means he has no power to pretend our statutes were actually rewritten by a federal court opinion, and that his oath means he must not abdicate his state’s sovereignty to the federal judicial branch in regard to what is now a federal marriage policy, because the U.S. Supreme Court opined that it is part of the Due Process Clause, then economic hell will most likely be threatened by LGBT political and legal groups.
 
The letter to the county clerks has already stirred the pot nationally.
 
The Human Rights Campaign and its allies won’t care about federalism, a proper interpretation of the Supremacy Clause, or the separation of powers. They want a marriage license from Tennessee, they want it now, and they don’t want these constitutional threats to their victory spreading to other states.
 
So, if the governor decides to abide by his oath and respect the constitutional values I’ve articulated, then you can expect Tennessee to become the eye of the storm nationally. Netflix threatening to pull out of Georgia will be humorous by comparison.
 
And if the governor takes a stand, every county clerk will have to rethink what he or she is doing. By the way, we’ve told Governor Lee we have a legislative solution, and it will be filed this month.
 

The Question Political Conservatives AND Evangelicals Must Answer

 
So, here’s the question for political conservatives: What is federalism, dual sovereignty, separation of powers, and fighting against the tyrannical notion of judicial supremacy worth to you financially if Company X leaves the state or Company Y decides not to relocate to Tennessee? Still want to “save” America?
 
In addition to the previous question, we evangelicals must answer this question: Are we willing to use the constitutional tools available to us to oppose this attempt at a nationwide definition of marriage if it costs us friendships and reputation in the eyes of those who think we are nuts, bigots, religious zealots, or deluded believers in fairy tales?
 

How I Came to Grips With These Questions

 
I do not say what I say about evangelicals and ministers for the sake of manipulating anyone, because the gospel is not manipulative. I say it because Jesus said this: “Do not love the world or the things in the world. If anyone loves the world, the love of the Father is not in him” (1 John 2:15).
 
I had to come to the place in my life in which I was willing to admit that this command was impossible unless there was implanted in me a love for something better, more real, more valuable, more to be desired than anything the world could existentially put before me, namely, the love of a Heavenly Father willing to send His only begotten Son into this world to do for me before God what I could not and then give me the indwelling of His Holy Spirit in order that I might be made fit to enjoy His incomprehensible glory for all eternity.
 
When that “love of God” finally became “shed abroad in [my] heart” (Romans 5:5), and “abroad,” not just in regard to this or that, then I began to be able to say with more conviction, “The sufferings of this present time are not worthy to be compared with the glory which shall be revealed in us” (Romans 8:18).
 
The Apostle Paul wrote, “Perfect love casts out fear” (1 John 4:18). Fear of reprisals and other things in a public defense of marriage has been a good self-check for me in regard to what and who I love the most and whose love I most treasure.
 
NOTES
 
[1] For example, every government official—state, local, and constitutional officers—who treats an employee as being in a valid same-sex marriage for employee benefit purposes is treating as valid that which the Tennessee Constitution says “shall be void and unenforceable.” I do not say that as a personal attack on the couple or the officials or for the purpose of threatening any government official, but as demonstrative of why I said the constitutional problems with Obergefell and its handling create very significant and substantial practical problems. I did not make those problems; the U.S. Supreme Court did.

[2] Daniel J. Meador & Jordana S. Bernstein, “Appellate Courts in the United States” 75-76 (1994). See also Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43, 62 (1993) (“[J]udicial opinions are simply explanations for judgments—essays written by judges explaining why they rendered the judgment they did.”).
 
[3] Apprendi v. New Jersey, 530 U.S. 466, 499 (2000).

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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