Upcoming State Legislation Will Separate the Sheep from the Goats
Mar 26, 2021 by David Fowler
In politics, a war takes place every primary election cycle among Republican gubernatorial and legislative candidates over who is the real conservative. In the general election, a more subtle war occurs between those who claim to be Christians, or maybe a “better” Christian than the opponent, based on their policy differences. Upcoming legislation will separate the proverbial politically conservative and Christian “sheep” from their “goat” counterparts.
That legislation, House Bill 1079, is before the House Children and Family Affairs subcommittee on Wednesday. It puts the following three questions to our state politicians, and by the time you read the last one, you will know why it will separate the real from the pretenders.
The first question is this:
A real conservative will say yes, otherwise he or she believes “marriage” and “parent” are just empty words and their content, meaning, and purpose are supplied by an act of civil government, either from a legislative act or a judicial ruling.
For a politician who claims to be a Christian, to say “no” is to say that when God spoke into and formed man and woman, joined them together in the first marital union, and spoke to them of procreation, He said nothing true or real about any of that and that none of that bore any creational witness to us about God, or at least nothing true and enduring.
If the politician’s answer to the first question is yes, the second question, flowing from the first, is this:
If the answer is “yes,” then the conservative politician did not really mean “yes” in response to the first question.
For the Christian, though, it is more than simply a matter of being conservative. This question goes to whether he or she believes that what God has joined together no man—which includes Presidents, members of Congress, and justices the U.S. Supreme Court—should put asunder.
Yes, I know a Christian politician could say that civil governments authorize divorce, but they do so only on certain conditions (too easily met). I know that divorce was even “permitted” by Moses, but only “because of the hardness of [our] hearts” (Matthew 19:8, NKJV).
But for civil government itself to bring about and create a kind of de facto “divorce” between the wife and husband for the express purpose of allowing an abortionist to kill their unborn child is especially and grievously wrong.
Moreover, for the political conservative, there is an additional problem with a “yes” answer. It means he or she has no accurate understanding of the limited powers and duties of the federal government, particularly vis-à-vis those of state governments. Husband-wife and parent-child relationships are domestic functions, not national functions.
Before the final question, you need to know what the bill does. It takes affirmative answers to the first two questions and relies on the Ninth Amendment [i] to make it a crime for an abortionist to kill the child of a married man and woman without the father’s consent.
That we should even have a bill on this subject is perverse because the universal moral prohibition on the intentional killing of any innocent human being without any due process should never be overcome by the agreement of two people, even parents. Legislation dealing with abortion itself was dealt with last year by the General Assembly. But this bill demonstrates just how perverse the U.S. Supreme Court’s abortion jurisprudence became after Roe v. Wade (1973).
In 1976 the United States Supreme Court held unconstitutional a law stating that it was unlawful for a doctor to perform an abortion without "the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother."
This was the opening sentence in that case.
In other words, the perversity of the Court in Roe severing a mother from the life of her child for the sake of her sexual autonomy logically had to lead to how far that autonomy went, and sexual autonomy would require the deconstruction of marriage.
That is what the Court purported to do in Danforth. The Court said in passing (actually in a footnote!) that marriage is nothing more than “an association of two individuals”—sort of like roommates.
Then, having ignored any substantive consideration of whether the marital relationship naturally gives rise to a mutuality of rights and duties that would naturally extend to their offspring, the Court offered this statist reason for holding the law unconstitutional:
In other words, in the opinion of the Court, the only rights and duties that exist when a man and woman commit themselves to each other in marriage are those that the State has the power to grant them.
That should make even a mere political conservative, and even more so a Christian, want to spit nails and scream: “All our rights do not come from civil government, much less an unrepresentative body of Ivy League-educated lawyers, and that is especially so when it comes to the fundamental and enduring relationships of husband and wife and parent and child!”
The third and final question, flowing from a yes answer to the first two, will make the political pretenders, that is, the goats, bleat “unfair!” It is:
To my mind, for politicians who affirm the previous propositions but won’t defend them in Court is saying those propositions don’t mean much to them. Truth is not worth defending.
It means they are willing to spend billions of citizens’ dollars on all manner of things but not spend anything to defend the reality of and the truth about the marital relationship between a man and woman and between them and their child, born or unborn.
It means they are willing to bow down to a Supreme Court and hide behind a precedent that did notdecide whether state governments can specify and protect the rights that a married couple naturally have, a married husband and father naturally has, and those a child naturally has concerning parental care for his or her welfare are among the “other rights” that the people retained by virtue of the Ninth Amendment.
As law professor Adam MacLeod told the Senate Judiciary Committee almost two years ago, Roe and Planned Parenthood v. Casey, and by extension, Danforth, are not precedent for a state law grounded in the Ninth Amendment.
Until the U.S. Supreme Court recovers its moral sense about having previously authorized a doctor to kill an unborn human being without criminal sanction, we can at least inject into that process of recovery the idea that marriage is a real thing, and its reality cannot and should not be abolished for the sake of a made up “liberty right” to abortion.
It is time the Supreme Court think through what it failed to fully consider in Danforth—the truth about the nature of the marital relationship between a man and woman and between them and their unborn child.
But if our state’s politicians don’t think so, then at least we will know who the sheep and the goats are.
[i]The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construedto deny or disparage othersretained by the people.” (emphasis added)
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
That legislation, House Bill 1079, is before the House Children and Family Affairs subcommittee on Wednesday. It puts the following three questions to our state politicians, and by the time you read the last one, you will know why it will separate the real from the pretenders.
The First Question That Will Separate the Sheep from the Goats
The first question is this:
Is there anything real and true about the nature of the relationship formed when a man and woman commit themselves to each other in marriage and does anything real and true arise as between them and as between each of them concerning those new human beings who result from their procreative acts?
A real conservative will say yes, otherwise he or she believes “marriage” and “parent” are just empty words and their content, meaning, and purpose are supplied by an act of civil government, either from a legislative act or a judicial ruling.
For a politician who claims to be a Christian, to say “no” is to say that when God spoke into and formed man and woman, joined them together in the first marital union, and spoke to them of procreation, He said nothing true or real about any of that and that none of that bore any creational witness to us about God, or at least nothing true and enduring.
The Second Question That Will Further Separate the Sheep from the Goats
If the politician’s answer to the first question is yes, the second question, flowing from the first, is this:
Should the federal government inject itself into those two relationships—husband and wife and parent and child—to sever the mutuality of commitment the man and woman have made to each other and the unity that is thereby created so that an abortionist can kill their child if the wife and mother wants to?
If the answer is “yes,” then the conservative politician did not really mean “yes” in response to the first question.
For the Christian, though, it is more than simply a matter of being conservative. This question goes to whether he or she believes that what God has joined together no man—which includes Presidents, members of Congress, and justices the U.S. Supreme Court—should put asunder.
Yes, I know a Christian politician could say that civil governments authorize divorce, but they do so only on certain conditions (too easily met). I know that divorce was even “permitted” by Moses, but only “because of the hardness of [our] hearts” (Matthew 19:8, NKJV).
But for civil government itself to bring about and create a kind of de facto “divorce” between the wife and husband for the express purpose of allowing an abortionist to kill their unborn child is especially and grievously wrong.
Moreover, for the political conservative, there is an additional problem with a “yes” answer. It means he or she has no accurate understanding of the limited powers and duties of the federal government, particularly vis-à-vis those of state governments. Husband-wife and parent-child relationships are domestic functions, not national functions.
What the Bill Does
Before the final question, you need to know what the bill does. It takes affirmative answers to the first two questions and relies on the Ninth Amendment [i] to make it a crime for an abortionist to kill the child of a married man and woman without the father’s consent.
That we should even have a bill on this subject is perverse because the universal moral prohibition on the intentional killing of any innocent human being without any due process should never be overcome by the agreement of two people, even parents. Legislation dealing with abortion itself was dealt with last year by the General Assembly. But this bill demonstrates just how perverse the U.S. Supreme Court’s abortion jurisprudence became after Roe v. Wade (1973).
What the United States Court Did to Further Its Jurisprudence of Death
In 1976 the United States Supreme Court held unconstitutional a law stating that it was unlawful for a doctor to perform an abortion without "the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother."
This was the opening sentence in that case.
This case is a logical and anticipated corollary to Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), for it raises issues secondary to those that were then before the Court. Indeed, some of the questions now presented were forecast and reserved in Roe and Doe .410 U. S., at 165 n. 67.
In other words, the perversity of the Court in Roe severing a mother from the life of her child for the sake of her sexual autonomy logically had to lead to how far that autonomy went, and sexual autonomy would require the deconstruction of marriage.
That is what the Court purported to do in Danforth. The Court said in passing (actually in a footnote!) that marriage is nothing more than “an association of two individuals”—sort of like roommates.
Then, having ignored any substantive consideration of whether the marital relationship naturally gives rise to a mutuality of rights and duties that would naturally extend to their offspring, the Court offered this statist reason for holding the law unconstitutional:
“[T]he State cannot ‘delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.’ . . . Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.”
In other words, in the opinion of the Court, the only rights and duties that exist when a man and woman commit themselves to each other in marriage are those that the State has the power to grant them.
That should make even a mere political conservative, and even more so a Christian, want to spit nails and scream: “All our rights do not come from civil government, much less an unrepresentative body of Ivy League-educated lawyers, and that is especially so when it comes to the fundamental and enduring relationships of husband and wife and parent and child!”
The Final Question That Will Separate the Sheep from the Goats
The third and final question, flowing from a yes answer to the first two, will make the political pretenders, that is, the goats, bleat “unfair!” It is:
Do our representatives have a duty to protect that unity and mutuality of commitment that naturally comes into being when a man and woman marry and the life of a child, and will they fight for their protection all the way to the U.S. Supreme Court if necessary.
To my mind, for politicians who affirm the previous propositions but won’t defend them in Court is saying those propositions don’t mean much to them. Truth is not worth defending.
It means they are willing to spend billions of citizens’ dollars on all manner of things but not spend anything to defend the reality of and the truth about the marital relationship between a man and woman and between them and their child, born or unborn.
It means they are willing to bow down to a Supreme Court and hide behind a precedent that did notdecide whether state governments can specify and protect the rights that a married couple naturally have, a married husband and father naturally has, and those a child naturally has concerning parental care for his or her welfare are among the “other rights” that the people retained by virtue of the Ninth Amendment.
As law professor Adam MacLeod told the Senate Judiciary Committee almost two years ago, Roe and Planned Parenthood v. Casey, and by extension, Danforth, are not precedent for a state law grounded in the Ninth Amendment.
In Conclusion
Until the U.S. Supreme Court recovers its moral sense about having previously authorized a doctor to kill an unborn human being without criminal sanction, we can at least inject into that process of recovery the idea that marriage is a real thing, and its reality cannot and should not be abolished for the sake of a made up “liberty right” to abortion.
It is time the Supreme Court think through what it failed to fully consider in Danforth—the truth about the nature of the marital relationship between a man and woman and between them and their unborn child.
But if our state’s politicians don’t think so, then at least we will know who the sheep and the goats are.
[i]The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construedto deny or disparage othersretained by the people.” (emphasis added)
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
