Judge Roy Brown Gets it Wrong again on Gay Marriage by Thomas Martin Saturday

Tolerance one


With the United States Supreme Court poised to rule on two cases bearing on gay marriage in the nation, a Federal District Judge refused to stop gay marriage in the State of Alabama. Enter the Chief Justice for the Alabama Supreme Court Judge Roy Brown. Brown refused to follow Federal Supreme Law in the ruling of the Federal District Court that has jurisdiction over Alabama’s prohibition of gay marriage.

Brown has repeatedly asserted that States within the Union have the supreme authority over Federal actions, not only in this area but in any area he deems is appropriate to assert that authority. This is an extreme State’s Rights position long favored on race and color in this nation. The Constitution of the United States expressly states that in instances where State judge’s rulings conflict with those of the Federal Courts, those of the Federal Courts shall be supreme. That is in Article VI, Section 2 and is known as the Supremacy Clause.

The colorful, Alabama untutored as to the law Judge Brown, in a debate with a reporter said that the member of the press should answer what he would do about decisions of the Supreme Court that were unjust such as the Dred Scott vs. Sanford ruling of 6 March 1857, or Plessy Vs. Ferguson in 1896

One of them said blacks were not and could never be citizens of the United States and were not part of the polity that made the Declaration of Independence and the Constitution. The Plessy decision permitted Jim Crow segregation until integration of public schools was codified by the Brown vs. Board of Topeka decision of May 1954.

The reporter had this right. He pointed out that in his case, as a private citizen, he could choose to refuse to follow the rulings mentioned even at the risk of his own liberty. Yet, if he were Chief Justice of the Alabama Supreme Court he would be bound by the Constitution itself to support those unjust rulings until overturned or re-interpreted by a later U.S. Supreme Court. At one point he said (the reporter) “but I’m not the Chief Justice, you are!”

Just what the Supreme Court will say this year about the two cases, one has plaintiffs arguing that States should decide on what sort of marriage they permit and not the Federal Government, and the other arguing that those same states ought not to have to recognize gay marriages performed and legal from other states.

The Court may decide on a compromise that does in fact give states a wide berth in legislating marriage laws. Traditionally, by long precedent, states do indeed perform most of the work in regulating marriages while the Constitution says nothing at all. It is the elastic clause, and its interpretation that has let the Federal government restrict gay marriage with the Defense of Marriage Act (DOMA) or the military’s don’t ask don’t tell.

The Obama Administration, acting within presidential authority by executive order, has decided not to enforce DOMA and to change the military’s policy on LGBT community members marrying each other. A future administration could reverse these two policies. The Court could strongly support the plaintiff’s arguments n in both suits before the Court.

And, the most elegant and to me appropriate ruling here would be to say states do have the right to prohibit gay marriage due to the long precedent of state authority over marriage and the absence of language to support it in the Constitution. Marriages that are so new in form to what has been long held to define marriage would not receive sanction unless a state acted to permit that.

But any argument based on this fundamental constitutional principle has to recognize that other state permitting gay marriage ought to have their actions honored all over the United States. That would mean the 36 states that have now agreed to permit it have those marriages be legalized everywhere in the nation.

The Court could say that gay marriage is a fundamental human and Constitutional right under the idea that all men and women are created equal and that they ought to as in the Fourteenth Amendment receive equal treatment under the law. This is the argument I strongly favor, though seeing the court’s logic in handing this job to the states would not be difficult, however disappointing that would be.

Justice Ruth Bader Ginsberg made a statement today that makes perfect sense to me:

“The change in people’s attitudes on that issue has been enormous. In recent years, people have said ‘this is the way I am.’ And others looked around and we discovered it’s our next-door-neighbor—we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am’, the rest of us recognized that they are one of us.”

I ought to note that that was largely the attitude of the Supreme Court toward Plessy vs. Ferguson with the Brown vs. Board decision overturning that unjust law. And we no longer have slavery permitted in our law until 1865.

Essentially, I long have taught in civics classes over decades, and in any American history work I’ve done that most nation’s constitutions are fatally weak because they both cannot be amended, or they do not change when the fundamental conditions of life have shifted beneath our feet due to changing attitudes, conditions that are naturally occurring, or those of the man-made variety with our racing changes in technology and all of the new legal questions they raise.

Our Constitution has to be a living, breathing document. It does not mean that justices ought to ignore precedent in most cases and look carefully at the Constitution and what it says itself, and measure that against what the plaintiffs are arguing in relation to that. It is essentially a balancing act for any Supreme Court justice.

There is one fundamental distinction that must be made in my argument in this essay, and in how our Constitution works. Religious sects or world religions, such as Christianity, Judaism, Islam, Buddhism, and Hinduism, are fundamentally protected from Federal Government interference in whom, and how they choose to marry people. If the minister, rabbi or imam agrees to also act for the State, then they must permit gay marriage and marry gay people in states presently awaiting the Supreme Court rulings in the U.S. who have already approved gay marriage. Or, if a Federal Court ruling such as in Alabama permits it.

But if the given church says no, our doctrine prohibits such a practice, and our ministers just cannot solemnize gay marriages, so we will not act on behalf of the government. The Constitution speaks to this with absolute clarity in the First Amendment and its protection of all religions, and the inability constitutionally for the government to approve of any single religion or act on behalf of them all.

So if you personally or your church say a profound ‘No!” to gay marriage, you are fully supported by the law. Yet, your faith cannot determine that for other faiths, people without a particular faith, or the Federal or State government themselves.

I’ve said all I wish to say on this issue at present, and hope this clarifies what our Constitution and laws, at the moment, provide for here. We await the ruling of the Supreme Court.

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