The Justice Chronicles Volume 24: Obergefell v. Hodges: At Last Marriage is Equal

Last month the Supreme Court ruled 5-4 that gay couples have a right to marry and any laws that prevented that are unconstitutional. It’s been nearly a month since the ruling came out, but I wanted to read the opinion before writing about it (yes, you can actually contact the public affairs office of the Supreme Court).

People who handicap the Court generally assumed Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer, and Elana Kagan would vote for marriage equality; Justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito would vote that states should have the right to decide, and that Justice Anthony Kennedy would be the swing vote that would carry the majority.

They were right. Justice Kennedy voted to strike down laws in those states that prohibit gay marriage. He wrote the opinion for the majority. Justices Roberts, Scalia, Thomas, and Alito all wrote dissenting opinions.

Writing for the majority, Justice Kennedy spoke of how “the history of marriage is one of both continuity and change.” Furthermore, “[h]istory and tradition guide and discipline the inquiry but do not set its outer boundaries.” He noted that in 1967 the Court struck down laws in much of the South that prohibited interracial marriage. Additionally in 1978 the Court struck down a law in Wisconsin that prohibited men from marrying if they owed child support, and in 1987 they found that prison inmates cannot be prohibited from marrying. The majority finds this case is a continuation of striking down laws that forbid different people from marrying.

The minority argued that while those other cases did strike down laws that prevented certain classes of people to marry, none of them changed the definition of marriage, that being between one man and one woman. Justice Roberts, in particular, felt that there has been a robust and necessary debate in this country on the definition of marriage and this ruling short circuited that debate. Ultimately he wrote that the definition of marriage should be decided by legislation, not judicial decision.

Justice Scalia agreed with Justice Roberts, and added his own concurrence. He found it telling that societies all over the earth and throughout history have defined marriage the same way: one man and one woman, and yet 5 unelected justices change marriage with the flick of a pen.

Justice Thomas wrote the part of the opinion that troubles me the most. The majority opinion speaks of how marriage equality allows the same dignity to homosexual couples that heterosexual couples have been able to take for granted. Justice Thomas argued that the government cannot confer or deny dignity. He wrote: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.” The fact that he is descended from slaves who would doubtless be shocked by this is only part of my disappointment.

Finally, Justice Alito, in addition to concurring with many of the arguments, added this one: this ruling will make it more difficult for those who disagree about gay marriage. He wrote it “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Further, “[r]ecalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fairplay.” In other words, this means the bullies may now be bullied.

I make no secret of my support for marriage equality. Far from devaluing marriage, I believe this enhances marriage by making it possible for a group that has been previously excluded. I’ve been married for 17 1/2 years and it’s been wonderful. It’s nice to see that our gay brothers and sisters have that open to them also.

By the way, the ban on interracial marriage was struck down 48 years ago. Most Americans now profess agreement with that decision. I pray that in a few years almost nobody will admit to having opposed gay marriage.

The Election 2016 Chronicles Volume 4: Donald Trump Explores New Horizons in Offensive Speech

In a previous post I spoke about Donald Trump and the offensive remarks he made about immigrants. I hoped that either he would grow up or drop out of the race.

Oh well. On Saturday, July 18th he was being interviewed by Frank Luntz at the Family Leadership Summit. In the course of the interview Mr. Luntz referred to Senator John McCain (R-AZ) as a “war hero.” It’s kind of a throwaway line as I think most of us view Senator McCain as a hero. He was a Navy pilot who was shot down in 1967 over North Vietnam. From then until 1973, when he was released, he endured horrific injuries, botched surgeries, near starvation, and torture. In 1968 the North Vietnamese offered to send him home but he refused to go unless all those who had been POW’s longer than him were also released. The North Vietnamese refused and he was a prisoner for another five years.

By any definition he was a hero. He was someone whose actions encourage others to serve and live with greater courage and distinction. Simply put, his actions made all of us better people.

Enter Donald Trump. For a full transcript of Mr. Trump’s remarks you can look here.

There’s enough offense here to go around but I want to focus on one line:

.. He’s not a war hero. He’s a war hero because he was captured. I like people who weren’t captured, okay? I hate to tell you that. He’s a war hero because he was captured, okay?

If Mr. Trump likes people who weren’t captured he’s telling us one of two things:

  1. He’s not a hero because heroes are those people who are smart enough or skilled enough to not get shot down. This is hard to stomach because it’s only the bravest enough among us to go that far into harm’s way. Senator McCain wasn’t shot down over friendly territory or even neutral territory. Hanoi was the capital of North Vietnam and there wasn’t a more dangerous place in the war. He stood tall in Hell.
  2. He’s not a hero because he surrendered. American POW’s were treated harshly in World War II because the Japanese believed that honorable soldiers would kill themselves before allowing themselves to be captured. Japanese captors believed that American POW’s were the “lowest of the low” because they were too cowardly to take the honorable route and commit suicide.

So this is an open question to Mr. Trump: If you believe Senator McCain isn’t a hero, is it because of reason #1 or reason #2?

By the way there’s an excellent article in today’s Washington Post. It gives a timeline of both Mr. Trump and Senator McCain from 1968 to 1973.

In fairness to Mr. Trump, while Senator McCain was being tortured by the North Vietnamese, Mr. Trump spent countless hours collecting rent from tenants in his apartments.

The Election 2016 Chronicles Volume 3: The List of Candidates Keeps Growing (and I'm Trying to Keep Up)

Every four years I give myself a self inflicted wound. I try to keep track of candidates for the next Presidential race. If that weren’t enough, once the delegate race begins I try to keep track of how many delegates are committed to each candidate.

This is more complicated that you might think. As I write this the “conventional wisdom” claims there are 15 running for the Republican nomination and 4 for the Democratic nomination.

That’s at least who I have listed on the left column of this blog. But if you go to the Republican web page there is a straw poll that includes Mark Everson (who has declared but is not taken seriously by most Republicans), Jim Gilmore (who hasn’t declared and doesn’t have a web page, only a facebook page), John Kasich (who also hasn’t declared and has only a facebook page and a twitter feed), and Peter King who hasn’t declared but does have a web page.

On top of that you can look at web pages that list Republican, Democrat candidates as well as candidates for other parties. These pages list dozens of other declared and potential candidates.

Both major parties will have to walk through the weeds and determine who are viable when they choose not only funding but also places at debates.

God it’s great fun to live in a democracy.

The Election 2016 Chronicles Volume 2: An Open Letter to Donald Trump

Dear Donald:

I’m writing to share some good news with you: Today, July 9, 2015 my nephew and godson Nathan Rycroft earned a Ph.D from Boston University.

I’m writing to tell you about this event not because of Dr. Rycroft, but because of his great grandfather Calixte Allain.

You see, your words on immigration have prompted me to think about the role of immigration in my family. On June 16, 2015 you said this:

When Mexico sends its people, they’re not sending their best. They’re not sending me. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.

Nathan’s great grandfather left his home in Canada and came to Gardner, Massachusetts somewhere around 1915. He married in 1918, had children born in 1920, 1922, 1923, 1924, 1926, 1928, and 1931. Of his seven children, he had five boys. Of those boys, four of them served in uniform during World War II or Korea, or both. He worked hard all his life and he did it with essentially a 3rd grade education.

His youngest son (Donald), Nathan’s grandfather, was able to earn a high school diploma. He did it through a combination of Calixte’s and Emma’s dedication and Donald’s determination.

Donald married in 1958, moved to Woodbridge, Virginia and had children born in 1960 (me) and 1962 (my sister Lisa). Both of us earned Master’s degrees, me from Catholic University and Lisa from American University. We did it through a combination of Donald’s and Claire’s dedication and our determination.

Lisa married in 1984 and had children born in 1987 (Nathan) and 1991 (Christopher). Nathan graduated college in 2009 and Chris in 2015. Nathan went on to get his Ph.D today.

I’m writing to you to tell you that Nathan’s great grandfather didn’t come to this country with “problems.” He came here with a determination to make a better life for him, his future wife, and future children (and grandchildren and great grandchildren). He didn’t bring crime, drugs and he didn’t come to rape anyone. He brought a future of good people who are now working hard, paying taxes, and are the kind of Americans you want to attract.

I understand that you are attracting potential voters and funding with your invective against people who don’t look like you (or me) but I want you to know that your bigotry runs against our history as Americans. The Statue of Liberty welcomes the people you want to exclude.

Please stop your bigotry.

The Justice Chronicles, Part 23: Reflections on the Confederate Flag

While I was born in Washington D.C. I grew up in Virginia, home to the capital of the Confederacy.

I’ll freely admit that I grew up in Northern Virginia that is in many ways distinct from the rest of the state. My parents, and the parents of most of my friends, came from somewhere else to work for the government, either in uniform or as a civil servant. My southern roots are shallow.

That said, it’s been interesting to listen to the national conversation on the Confederate Battle Flag. There was an official Confederate Flag but it looked too much like the United States Flag and was confusing to Confederate soldiers. The “Stars and Bars” has come to be known as the Confederate Flag.

On April 9, 1965 Robert E. Lee and his Confederate forces surrendered to Ulysses S. Grant and the Confederate States of America ceased to exist.

But the flag didn’t. Many in the South continued to fly the flag for a variety of reasons. Some felt that “the South will rise again” and independence from the United States was only a matter of time. There weren’t many of them, and they really didn’t matter.

The battle flag endured because many in the South wanted to rewrite history. They continue to claim that the Civil War (or “the war between the states” or “the war of Northern aggression”) wasn’t about slavery but about states’ rights and southern heritage. They insist the flag isn’t about racism or exclusion but about celebrating their heritage.

Fair enough, but for the descendants of slaves (like Michelle Obama) and even for those whose ancestors came from Africa after 1865 (like Barack Obama) the battle flag is a symbol of only this: slavery. It harkens to a time when they and their children were owned as property. A time where they were believed to be inferior and unable to care for themselves. A time when it was against the law to teach them to read.

And since 1865 it’s become a symbol of ongoing racism. Organizations like the Ku Klux Klan and the Council of Conservative Citizens insist the battle flag isn’t a symbol of racism while they continue to insist that Americans of African descent are a danger to us all.

The real danger is the ongoing racism and it must stop. And the battle flag must also.

Today is the 239th anniversary of the birth of our nation. Let us all honor the same flag.