By David Tulis
David Fowler of Family Action Coalition of Tennessee helped convince members of a Tennessee house of representatives panel that they should avoid the doctrine of interposition because of its high cost.
If they wanted to defend marriage in Tennessee on the basis of its constitution that they would have to impeach the governor, face jail time for defiance of federal judicial opinion and interrupt the dependence Tennesseans have on federal authorities in Washington, he said.
Whereas the interposition backers favored courage, boldness and a certain reckless indignation, Mr. Fowler and the Christian political nonprofit establishment favored what might be favorably characterized as realism — and unfavorably characterized as pragmatism.
The bill was defeated Jan. 20 in a House subcommittee, where Republican leadership had buried it in hopes that squabbling would quietly kill the measure.
The bill was at least partly inspired by the work of Rev. Matt Trewhella, whose book Doctrine of the Lesser Magistrate encourages lawful resistance by lesser officials against depradations, despotisms and violence by greater ones. The book has created a stir across the United States as outline a way for Christianity to obtain at least partly a political defense against lawlessness from afar.
Fowler cites terrifying duty
“I said they should not vote for a bill they did not intend to enforce by impeaching the governor,” Mr. Fowler says, “and other constitutional officers who ignored the law (either the governor by issuing [same-sex] marriage licenses, which is what the amendment to the bill called for), or by giving [same-sex] ‘married’ couples employee benefits.”
Mr. Fowler, an attorney and former state senator, said “they should be prepared to find nine more citizens and lead the charge to oust local officials who gave [same-sex] ‘married’ employees benefits available to married employees.”
Mr. Fowler here refers to the Tennessee relator statute that lets an unofficial group of 10 citizens impeach state officials for malfeasance or sins in public office. I have published at least two essays about the relator statute, but retracted them.‡ Mr. Fowler says my only mistake was to have suggested the relator law could be used against Gov. Haslam. It can be used, he says, to oust for violation of oath of office county clerks such as Bill Knowles of Hamilton County, who records unions between two men and two women as marriage.
Mr. Fowler cited a section of the bill that states, “No state or local agency or official shall give force or effect to any court order that has the effect of violating Tennessee’s laws protecting marriage.” The provision simply repeats the state constitution on marriage.
“Section (e) of the bill is what embroiled all government officials in the issue of whether to give [same-sex] ‘married’ employees employee benefits such as family health insurance. I told them a law they would allow to be routinely ignored was not worth the paper it was written on. Some probably didn’t vote for it because they knew they would not take the next step and some probably didn’t vote for it because they thought there was a better first step (Mike Carter) and some probably didn’t understand what I was saying.”
Mr. Fowler recounts that upholding the constitution and the repetition of it in the bill would embroil local officials in federal legal harassment of the kind faced by a Kentucky county clerk who was jailed by a federal judge for a week.
“Because of section (e), the local official who did not give group family health insurance benefits to an employee who thought he was in a legal [same-sex] marriage would be dragged into federal court like Kim Davis and given the choice of going to jail for contempt if they didn’t provide the insurance and being ousted by citizens if they did.”
Mr. Fowler also objected to the lack of a provision in the statute that would have had the state pay for defense of any city, county or state official who defied the Obergefell opinion.
Most folks didn’t understand *** the chain of reactions that bill [would have] launched. I told them to vote FOR the bill if they were OK with that.
When I told them they should not vote for the bill if they were not willing to take the next step to back it up and enforce it, Rep. Pody, the sponsor, came to the microphone and didn’t say a word to the effect he would do anything to enforce his bill if it passed. You can draw your own conclusions from his silence.
*** [F]or months I’d challenged him to answer that question, doing so even on Tuesday, and he never said he would. In fact, there was nothing to prevent him from filing impeachment proceedings before he filed the bill. Nothing to prevent him from doing it now.”
On FACT’s website, Mr. Fowler says the bill is a comprehensive argument and brings difficult duty. “A law that is going to be ignored and not enforced is not worth the paper it’s written on. I told legislators to vote for the bill if they were willing to take the steps necessary to enforce the law — to impeach the Governor and the other constitutional officers and oust their local officials. But I also told them not to vote for the bill if they were not willing to take this necessary second step — removing officials who didn’t follow the law.”
“If you vote for the bill,” Mr. Fowler said to legislators, “then be ready to purge the state of all state and local officials who disagree. Interestingly, legislators could have already taken those steps. Impeachment proceedings could have already been filed. The bill didn’t need to pass for those steps to be taken.”
Mr. Fowler has written two texts about the defense of natural marriage bill, “How should Tennessee resist the Supreme Court?” and Questions You Should Consider on HB 1412, the Natural Marriage Defense Act
What it means
Division among Christians stopped the Tennessee interposition bill. On one side are those who say the bill lets the general assembly assert itself in defense of the people within the state, and of state government elected by them. This perspective insists the state make its case for the institution of marriage as God gave it, and as the state seized it from the people by regulation and statute. Marriage is a common law right, but the state takes propriety in marriage and doles it back to the people, who must apply for marriage to the state as a favor in the form of a privilege.
The Beavers-Pody bill is courageous and at least a start toward restoring constitutional government and giving officeholders a stake in the constitution.
Mr. Fowler has no patience with the bill’s backers. He says that the measure is vanity because none of the backers have taken part in ouster proceedings and have not filed impeachment proceedings and will not themselves undertake such powerful steps. The bill, in other words, is so much hot air and posturing, its arguments lacking support within the general assembly and the general republic.
The defense of marriage act is an adventure in self-government that the people and state government are unwilling to undertake, so best to veto the plan at its first hearing, Mr. Fowler seems to be saying. Obergefell has no authority whatsoever as the federal high court lacks subject matter jurisdiction, and seized marriage from the states in contradiction of its opinion two years earlier in Windsor, which it decided on states’ rights grounds.
Mr. Fowler has filed a lawsuit that he says has a better chance of reducing the damage caused by Obergefell. But in discouraging lawful interposition, he denies any prospect of such measures elevating the level of resolve and courage, which virtues often come bit by bit as the battle is engaged. Rare is a man who has at the beginning of the fight the terrible courage he arrives at near its end. Mr. Fowler, cautious attorney, does not account for that.
‡ Tulis yanks texts suggesting 10 ‘relators’ here could oust governor. One story about relators suing to oust a county clerk is here.
— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. Support this site and his radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app or at Hotnewstalkradio.com. You back David by patronizing his advertisers with specific reference to him. Even better, encourage independent media by having David run commercials for your business. Also, “buy me a coffee at the tip jar.”