By David Tulis
The debate over Amendment 1 to the Tennessee constitution brings to mind the 1973 Roe vs. Wade opinion from the U.S. supreme court that is said to have recognized a constitutional right to abortion and to have nullified in all 50 states the protections of law for babies in the womb. The ruling is said to have overturned restrictions and established a woman’s right to choose.
Abortion and no-fault divorce are two important attacks on marriage, the family and the American capital base.‡ Before us today in Tennessee, a pro-marriage state, is a third wave, seemingly about to drown marriage and its myriad benefits as a legal form. That is the deconstruction of marriage to define it as including a man marrying and cohabiting with a male lover and putting gay unions on equal level as marriage.
Tennessee declined to resist Roe vs. Wade and declare it a nullity within its borders. Gov. Winfield Dunn did nothing. The legislature did nothing. No one interposed; no one intervened; no one faithfully executed his oath of office as to raise a hand to stop the arrival of a purported right to destroy one’s seed in utero, to set up for-profit clinics in which to do so safely and preserve the health and welfare of the mother.
Amendment 1 seeks to give the state leeway to regulate abortion if Roe vs. Wade is someday altered or rescinded.
Law is codification of religion
Law is always a moral proposition. It embodies a view of the world, a claim of good and evil, right and wrong. Even a complex law of a financial sector or a 2,000-page law reorganizing the health insurance industry contains presuppositions that are religious — some view or other of God or of a manmade idol or deity. Every law attaches itself to some conception of ultimate good.
Law is a form, a sequence of propositions, a set of books that declare what is to be done, or what is forbidden, and the penalties for doing a wrongful act.
We can have an erroneous confidence in forms, in types of government, in constitutions. This temptation is particularly strong among patriotic Americans, conservatives, tea partiers and homeschoolers. R.J. Rushdoony says “man’s depravity can turn any form, monarchy, republic, democracy or anything else into an instrument of tyranny. We have seen tyranny triumph repeatedly in history, whatever the legal safeguards or forms of government. All the well devised schemes of men are destroyed by the fact that man is a sinner. Without Christ, he will corrupt any and all forms of civil and ecclesiastical polity.”
Not that forms are nothing and don’t matter. Tennessee’s constitutional definition of marriage, sought for destruction by gay couples, is important. But just as faith without works is dead (James 2:14-26), “so too works, forms, rites, polities and governments without faith are dead also. The modern faith is strongly in forms.”
Not forms, but living meaning
Is the Tennessee constitution’s definition of marriage important? As the sexual revolutionaries wave their Noahic rainbow banners before the federal court of appeals in Cincinnati, we must ask ourselves what we believe about God’s creation, the distinction between the sexes and the marital basis of capital and civilization. Does marriage matter to us? To our governor, Bill Haslam? To our county clerk, Bill Knowles?
Without a faith in God’s created order, “the forms collapse,” Rushdoony says. “Institutions and constitutions then become empty and meaningless, and justice gives way ***. Nothing works, because our world does not depend upon mechanical forms in church and state but on a living faith, filled with works.”
We can have rich marriages without statutory forms. We can have statutory forms without rich marriages. From this point of balance, we admit to a temptation to think that laws, that forms, that oaths to uphold laws can be deleted, ignored, set aside arbitrarily — that law can be made to evaporate, that a democratically framed law such as the Tennessee marriage amendment can be made null and void by a federal court INACTION or by a federal court ACTION.
Recently several marriage states “went gay” when the U.S. supreme court denied a petition for writ of certiorari to hear appeals over challenges to their marriage provisions. Governors threw up their hands and said, implausibly‡‡, no further appeal is possible, and directed county clerks to record same-sex couples as married.
My argument for the doctrine of the lesser magistrate proposes a fresh look at the forms of Tennessee law. Not to view them as empty, mere lifeless text. But as living promises, as living testaments of the will of the people that in this case reflects God’s created order. The ancient doctrine of the intervening and protective lower magistrate proposes that these elected officeholders honor their oaths of office before God to defend the constitutions entrusted to them. I refer to Gov. Haslam and clerks in Hamilton County and others in the state. If they hold to their oaths to defend the marriage provision of law, they do no wrong. They in fact stand as representatives of the people and their righteous will as regards marriage. Their refusal to go along to get along makes them true democrats, true representatives of the people. If they yield, if they concede to a clamor from Washington or Cincinnati, they perjure themselves, they reject their oaths, they impeach themselves before the people who have entrusted them with office.
Mr. Knowles swears to uphold the constitution, so help him God. Is it possible that two gays demanding a marriage license from him have power to separate him from his oath? These lovebirds are thrusting upon him a still-warm printout from the SCOTUS website on gay constitutional rights, affirming they have a U.S. right to marry man-on-man even here in Tennessee. Do their claim and that printout separate Mr. Knowles from his oath to enforce, live out and breathe life into our marriage law? Does a federal opinion vacate our law, levitate meaning from it, leaving behind an empty form of words, meaningless gibberish from former times?
The hope of the people is — or should be — that these high officials live out our constitution and its protections, come what may.
‡ The Bolsheviks introduced no-fault divorce to help abolish marriage. “Of course, if living together and not registration is taken as the test of a married state, polygamy and polyandry may exist; but the State can’t put up any barriers against this. Free love is the ultimate aim of a socialist State; in that State marriage will be free from any kind of obligation, including economic, and will turn into an absolutely free union of two beings. Meanwhile, though our aim is the free union, we must recognize that marriage involves certain economic responsibilities, and that’s why the law takes upon itself the defense of the weaker partner, from the economic standpoint.” — Nikolai Krylenko, Russian legal architect.
‡‡ Refusal to grant a hearing decides nothing. “The plaintiffs contend, as well, that the Supreme Court’s recent denial of certiorari in three cases where Baker was expressly overruled is tantamount to declaring that Baker is no longer good law. The denial of certiorari is not affirmation. See Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950)(holding that denial of petition for certiorari “does not remotely imply approval or disapproval” of lower court’s decision); Hughes Tool Co. v. TransWorld Airlines, Inc., 409 U.S. 363, 365 n.1 (1973)(holding denial of certiorari imparts no implication or inference concerning the Supreme Court’s view of the merits). That the Supreme Court denied certiorari in Baskin, Bostic, and Kitchen speaks more to the fact that there is not, as of yet, a split among the few circuit courts to consider this issue.” — U.S. District Judge Juan M. Perez-Gimenez, Ada Conde-Vidal et all v. Alejandro Garcia-Padilla et al, Civil No. 14-1253 (PG), Oct. 21, 2014
Sources, R.J. Rushdooony, “The death of empty forms,” The Roots of Reconstruction (Vallecito, Calif.: Ross House Books, 1991), pp 416-419
No-fault divorce, Wikipedia
— David Tulis hosts Nooganomics.com at Hot News Talk Radio 1240 and 910 AM 1 to 3 p.m. weekdays, covering local economy and free markets in Chattanooga and beyond.