Parental Rights Bill Provides Insight into the Competency of Most Republican Legislators
Apr 25, 2024 by David Fowler
Being a Tennessee legislator is hard, not just because the level of acrimony is becoming worse, but because the whole nature of the world changed on June 26, 2015, and, sadly, only about three or four of Tennessee’s legislators, at most, have to any degree grasped that reality. A case in point is Senator Ferrell Haile’s and Representative Jeremy Faison’s Parental Rights and Responsibilities Act. They, along with the majority of their fellow Republicans, put parental rights on a slippery slope. Read what follows and you will see how unrepresented you are by most Republican legislators.
I do not question the motives of Senator Haile and Representative Faison. But I do believe that on this issue they were in over their heads. Worse yet, the primary legal advocates to whom they were listening were giving them clues, unwittingly, that the bill was a bad idea, and they didn’t pick up on those clues. That’s because none of our legislators and very few conservative legal advocates who were lobbying them have an adequate appreciation for the new world of family law in which they are working.
The problems with this bill begin with the fact that it doesn’t take into consideration the fact that on June 26, 2015, in Obergefell v. Hodges, the United States Supreme Court redefined in law the nature of the family in toto.
I will briefly explain what happened and give you only two reasons why this changes everything. You will see how uninformed Senator Haile and Representative Faison are on this subject, along with their Republican colleagues.
The first problem with this bill: Thinking in terms of a bygone legal world.
To prove that Obergefell changed the nature of the family from the one Senator Haile and Representative Faison naively think still exists, this email from the Department of Health on July 1, 2015, five days after Obergefell, shows that Tennessee no longer recognizes male-female procreation as the foundation for a family, effectively overruling both natural and common law!
The change in the world is reflected on state birth certificates. A newborn can now have two mothers listed on a birth certificate, as distinct from the indisputable birth fact that every child has heretofore had a mother and father listed.
As a result of this change, the biological kinship foundation upon which the natural law and the God-given rights of parents was once predicated, and which the common law gave force to, is gone in our nation’s jurisprudence and in state law if birth certificates mean anything.
Senator Haile and Representative Faison and many legal advocates don’t seem to have grasped this.
Why is grasping this first point so important?
The answer is that the jurisprudence of the “new world” of the “redefined family” will most likely be employed by judges to interpret the words in this new law, not the jurisprudence of the old world. (For further proof of this, read in the next heading what a legal expert for the bill said about the state of the U.S. Supreme Court’s family law jurisprudence that undermined the whole bill.)
In fact, our attorney general’s office (prior to General Skrmetti) argued in state courts that the U.S. Supreme Court’s decision requires the word “male” include the word “female” and requires the word “husband” include the word “wife.” Both times the courts agreed and redefined the objective, historical meaning of the words in our statutes.
Then, the United States Supreme Court said states can’t constitutionally refuse to put two mothers on a child’s birth certificate (Pavan v. Smith)!
Haile and Faison don’t seem to have grasped this change in family law yet, along with the other Republicans who voted for the bill and the “conservative” organizations that supported it. This failure is exacerbated by the second problem—how the words in the bill will be interpreted!
The second problem: Turning over parental rights to the federal government.
A consideration easier to grasp is one neither Senator Haile nor Representative Faison were willing to consider until it was forced on Representative Faison by a handful of noble representatives on the morning of the floor vote.
That morning, I emailed notice of this problem to a few of the more noble members of the House who I didn’t think would dismiss me out of hand, as Haile and Faison have done.
In what follows, I hope you will see the problem with what Senator Haile passed in the Senate, and what Representative Faison would have passed in the House but for an amendment supported by some of these noble representatives, led by Representative Chris Todd.
My email to the noble legislators about federal government intrusion into state parental rights.
The text of the bill Senator Haile persuaded the Senate to adopt, and that Representative Faison was ready to have the House adopt said that the rights of Tennessee parents were to “be construed” not just according to Tennessee’s statutes, common law, and constitution, but also according to the “federal constitution.”
This may sound fine to those who don’t understand how Obergefell changed the world, but at least some of representatives I emailed did not want Tennessee going into court one day having conceded, by their vote, the possibility of the federal constitution overruling any right parents have under Tennessee law because of a federal judge’s decision.
Here is the email I sent that got the attention of these noble representatives, and, even if you aren’t a lawyer, I bet you can appreciate what Senator Haile and Representative Faison earlier refused to consider:
Though only a handful of Republicans cared about the first problem and voted against the bill, the amendment I requested was adopted. But here’s the point: If you think the majority of Republicans in your legislature understand the nature of the new world of law we are living in, you need to think again. In that world, most of you are not represented.
I do not question the motives of Senator Haile and Representative Faison. But I do believe that on this issue they were in over their heads. Worse yet, the primary legal advocates to whom they were listening were giving them clues, unwittingly, that the bill was a bad idea, and they didn’t pick up on those clues. That’s because none of our legislators and very few conservative legal advocates who were lobbying them have an adequate appreciation for the new world of family law in which they are working.
The problems with this bill begin with the fact that it doesn’t take into consideration the fact that on June 26, 2015, in Obergefell v. Hodges, the United States Supreme Court redefined in law the nature of the family in toto.
I will briefly explain what happened and give you only two reasons why this changes everything. You will see how uninformed Senator Haile and Representative Faison are on this subject, along with their Republican colleagues.
The first problem with this bill: Thinking in terms of a bygone legal world.
To prove that Obergefell changed the nature of the family from the one Senator Haile and Representative Faison naively think still exists, this email from the Department of Health on July 1, 2015, five days after Obergefell, shows that Tennessee no longer recognizes male-female procreation as the foundation for a family, effectively overruling both natural and common law!
The change in the world is reflected on state birth certificates. A newborn can now have two mothers listed on a birth certificate, as distinct from the indisputable birth fact that every child has heretofore had a mother and father listed.
As a result of this change, the biological kinship foundation upon which the natural law and the God-given rights of parents was once predicated, and which the common law gave force to, is gone in our nation’s jurisprudence and in state law if birth certificates mean anything.
Senator Haile and Representative Faison and many legal advocates don’t seem to have grasped this.
Why is grasping this first point so important?
The answer is that the jurisprudence of the “new world” of the “redefined family” will most likely be employed by judges to interpret the words in this new law, not the jurisprudence of the old world. (For further proof of this, read in the next heading what a legal expert for the bill said about the state of the U.S. Supreme Court’s family law jurisprudence that undermined the whole bill.)
In fact, our attorney general’s office (prior to General Skrmetti) argued in state courts that the U.S. Supreme Court’s decision requires the word “male” include the word “female” and requires the word “husband” include the word “wife.” Both times the courts agreed and redefined the objective, historical meaning of the words in our statutes.
Then, the United States Supreme Court said states can’t constitutionally refuse to put two mothers on a child’s birth certificate (Pavan v. Smith)!
Haile and Faison don’t seem to have grasped this change in family law yet, along with the other Republicans who voted for the bill and the “conservative” organizations that supported it. This failure is exacerbated by the second problem—how the words in the bill will be interpreted!
The second problem: Turning over parental rights to the federal government.
A consideration easier to grasp is one neither Senator Haile nor Representative Faison were willing to consider until it was forced on Representative Faison by a handful of noble representatives on the morning of the floor vote.
That morning, I emailed notice of this problem to a few of the more noble members of the House who I didn’t think would dismiss me out of hand, as Haile and Faison have done.
In what follows, I hope you will see the problem with what Senator Haile passed in the Senate, and what Representative Faison would have passed in the House but for an amendment supported by some of these noble representatives, led by Representative Chris Todd.
My email to the noble legislators about federal government intrusion into state parental rights.
The text of the bill Senator Haile persuaded the Senate to adopt, and that Representative Faison was ready to have the House adopt said that the rights of Tennessee parents were to “be construed” not just according to Tennessee’s statutes, common law, and constitution, but also according to the “federal constitution.”
This may sound fine to those who don’t understand how Obergefell changed the world, but at least some of representatives I emailed did not want Tennessee going into court one day having conceded, by their vote, the possibility of the federal constitution overruling any right parents have under Tennessee law because of a federal judge’s decision.
Here is the email I sent that got the attention of these noble representatives, and, even if you aren’t a lawyer, I bet you can appreciate what Senator Haile and Representative Faison earlier refused to consider:
Though only a handful of Republicans cared about the first problem and voted against the bill, the amendment I requested was adopted. But here’s the point: If you think the majority of Republicans in your legislature understand the nature of the new world of law we are living in, you need to think again. In that world, most of you are not represented.
