The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny.
—James Madison—
An expanded version of this article is available here.
The Founders of the United States of America designed a balanced system of government that sets the stage for limiting the power of each of its three major divisions, or branches. We call this a system of checks and balances. It is a system that rests on the principle of the separation of powers.
Signing of the US Constitution by Junius Brutus Stearns
According to this model, courts cannot enact or rewrite laws; they can only interpret them or rule them unconstitutional. Only legislators—lawmakers—can write laws.
Recently, the highest court in Massachusetts reached beyond its designated authority. During the week of October 6, 2016, the Massachusetts Supreme Judicial Court issued a ruling in a case involving two unmarried women and a child one of them had conceived through artificial insemination. Could the woman who hadn’t given birth be recognized as one of the child’s legal parents? Her lawyer was Mary Bonauto, one of the lawyers who argued on behalf of same-sex couples in the Obergefell case. In presenting her arguments, Bonauto pointed to two Massachusetts statutes. David Fowler of the Family Action Council of Tennessee explains (emphases added),
David Fowler
First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus, meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?
Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!
But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”
Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commented on the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy…the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”
As a matter of supremacy…the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.
—Mary Bonauto, lawyer and advocate for same-sex marriage—
Yes, a similar case is being litigated in Knoxville—
a divorce proceeding… involving a marriage between two women. During the marriage, one of the women conceived a child by artificial insemination. The issue involves the custody rights of the woman who has no biological relationship to the child.
The controversy centers on a statute that deems a child born to a “married woman” by means of artificial insemination, with the consent of the “married woman’s husband,” to be the “legitimate child of the husband and wife.”
The two women have asserted that that statute, enacted in 1977, is unconstitutional if it is applied according to the plain meaning of the words used and is not interpreted by the courts to apply to same-sex marriages.
With all of this as a backdrop, I have some good news and some bad news.
- First, the good news. Fortunately, David Fowler has filed a motion on behalf of 53 state legislators to intervene in this case. Remember, courts have no authority to rewrite laws; they only can interpret them or deem them to be unconstitutional. More than any other party, the legislators—the lawmakers themselves—surely have a great deal to say about what the laws meant when they passed them, and what they mean today. Legislators’ perspectives should be extremely valuable to the court in determining any law’s intent. Furthermore, if a marriage law or laws are ruled unconstitutional, it then would become the prerogative of the legislature—the lawmaking body of Tennessee—to respond.
- Now, the bad news. The Tennessee’s attorney general, Herbert Slatery, also has addressed the question at issue in this case. The bad news is that unfortunately, he apparently agrees with Mary Bonauto!
According to David Fowler in an email,
The [relevant] statue says, “A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.”
In response, the AG literally cited the definitional section of the Code about how the Code is, generally speaking, to be interpreted. It says, “words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” Then the AG immediately wrote: “So both the word ‘husband’ and the word a ‘wife’ in [the statute] would be properly construed to mean ‘spouse.’”
So much for reading the words “except when the contrary intention is manifest!” The AG argues as if that phrase isn’t even in the statute it relies on!
So both the word “husband” and the word a “wife” in [the statute] would be properly construed to mean “spouse.”
—Tennessee Attorney General Herbert Slatery, completely ignoring the italicized portion of this guideline for interpreting state law: “[W]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.”—
If there ever were legal arguments desperately needing friend-of-the-court briefs, those being made by David Fowler are those arguments. Amicus briefs opposing him and the legislators surely will be filed by national organizations that favor LGBT causes, especially since Attorney General Slatery has sided against state sovereignty in this case.
The Massachusetts case already has been lost. According to Fowler, similar cases also have been lost in Indiana and Wisconsin. Another case is being litigated in New York. Additional legal conflicts are sure to surface. Will pro-marriage organizations anywhere else do as David Fowler has done and seek out legislators who might be willing to go to bat for man-woman marriage—or at least for marriage and family laws as they were originally written? Are we really willing to surrender the meanings of the words “man,” “woman,” “husband,” “wife,” “father,” and “mother” without a fight? Furthermore, if these words lose their inherent meaning, is there anything on progressives’ wish lists that won’t become reality as these pioneers of the new social frontier seek to reshape civilization? “Civilization” is yet another word that will be redefined, and everyone will pay a high price!
Are we really willing to surrender the meanings of the words “man,” “woman,” “husband,” “wife,” “father,” and “mother” without a fight?
Keep in mind this isn’t just about marriage, but also about divided government and the separation of powers. Do courts have the right to rewrite laws? In our constitutional republic, they do not.
As George Washington said in his Farewell Address,
It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its Administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism.
We soon will see if the US and Tennessee constitutions will be honored or totally ignored. If they are ignored, then we’ll no longer live in a republic, but an oligarchy; and, as precious as man-woman marriage is, they’ll be a great deal more at risk than just the sanctity of man-woman marriage.
Copyright © 2016 by B. Nathaniel Sullivan. All rights reserved.
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