Wednesday, January 28, 2015


Thomas McIntyre Cooley, the renowned nineteenth century American jurist, insisted that written constitutions should be interpreted as intended by the people who wrote them and who ratified them.

He believed that any judge who tried to change the meaning of the constitution to fit the changing of popular opinion would be guilty of misfeasance in office.

In fact, he said that the very reason to have a written constitution is to protect the fundamental law of the land from being ignored or changed by the people in government.

The cases involving gay marriage now wending their way through the hallowed halls of the United States Supreme Court are particularly important because they present in stark clarity the issue of whether our federal Constitution means what it was written to mean or whether it means what nine unelected men and women think it would, should or might mean if it were written today.

Certainly no lawyer briefing or arguing this case would claim that the men who wrote and ratified the United States Constitution in the last decades of the eighteenth century or those who drafted and adopted the Fourteenth Amendment in the middle of the nineteenth century intended that by assuring equal protection of the laws they meant to authorize or condone sexual activity between persons of the same sex or to elevate it to the legal status of matrimony.

And certainly none of the nine Justices will attempt to justify voting to legalize gay marriage as being required, suggested or even permitted by the original intent of the founders or the Reconstruction Congress.

No indeed. That is not what will be said during the oral arguments, and it is not what we will read in the judicial opinions. What the lawyers will debate and what the Justices will discuss and decide is not what the words “equal protection of the law” meant in 1789 or 1868. No, they will be debating what those words mean to people in 2015.

Now here is where legal theory comes into conflict with democracy. Deciding what words mean to the people of today is simply another way of trying to measure public opinion.

Do the general run of the American people think that giving everyone the equal protection of the laws requires legalizing gay marriage?

The Supreme Court of the United States, on more than one occasion has decided a case based on what a majority of the Justices believed to be “an emerging public consensus.”

Letting judges decide cases based on public opinion is wrong. It is bad law and it is bad politics. Even worse is letting them decide cases based on “emerging” public opinion.  When they say that something represents the “emerging public consensus” they are admitting that the majority of the people still think otherwise, but pretty soon they will agree with the Court.

Appellate judges are like second term Presidents. They are motivated by the desire to be admired, respected, loved and famous. They think about their ‘legacy.’ How will historians treat them?  And, of course, they know that historians read old newspapers, so judges like favorable editorials.

Judges like to make ‘historic’ decisions; decisions that make a difference. Landmark cases. And they know that the American people have great respect for their Supreme Court. The building, the aura, the security, the lines of visitors who trek daily through the halls and whisper reverently in the empty courtroom; the Justices live and work among these reminders of their power and importance.

Justices know that their decisions influence the way people think. When they talk about ‘emerging’ public consensus, they know full well that their approval of gay marriage will move the ball closer to the goal they approve and predict. 

No honest, patriotic American would deny the people of Michigan the right, either directly or through the act of their legislature, to legalize gay marriage.

But no honest, patriotic American should tolerate that decision being made by the Justices of the Supreme Court.

Monday, January 26, 2015


In 2004, the people of Michigan voted on Proposition 04-2, a proposed amendment to the State’s constitution which defined marriage as a contract between one eligible male and one eligible female.

The amendment was adopted by a significant 58.6% of the voters, with 2,698,077 voting in favor of the proposal and 1,904,319 voting against it.

Eighty of Michigan’s 82 counties voted “Yes.” Only two counties, Washtenaw and Ingham, voted “No.”  The University of Michigan is located in Washtenaw County and Michigan State University is in Ingham County. Both U of M and MSU have enrollments exceeding 40,000 students, who are required to vote in their academic residence counties.

On January 23, 2012, a lesbian couple filed a lawsuit in the U.S. District Court for the Eastern District of Michigan, challenging the state's ban on same-sex marriages. The women are April DeBoer and Jayne Rowse, both nurses. One has an adopted son and the other has two adopted daughters. Michigan law restricts second-parent adoption to married couples.

The Federal District Court Judge ruled that Proposition 04-2 violated the United States Constitution and directed the defendant county clerk to issue a marriage license to the plaintiffs.

On appeal to the Sixth Circuit Court of Appeals in Cincinnati, the decision of the trial court was reversed. The plainiffs appealed to the United States Supreme Court. On November 17, 2014, the Supreme Court agreed to hear the case and consolidated it with three similar cases from other States, giving all the lawyers until April 17, 2015 to file their briefs.

In the days and weeks ahead, there will be much speculation in the newspapers, on television and all over the Internet on whether or not the Supreme Court of the United States will “legalize gay marriage.”

Attorney General Schuette who represents the State of Michigan has capsulized the case exactly as it should be understood. He says the case is all about “who gets to decide the question of gay marriage?”

Schuette argues that the people of Michigan have the power and the authority to amend their constitution, and the definition of marriage is one of those things that the Tenth Amendment leaves to the States to decide.

Like all the other States. Michigan has laws which establish the minimum age for marriage and the degrees of kinship which are eligible to marry. Its statutes require that the parties be free to marry; bigamy and polygamy are prohibited. Michigan has abolished common law marriage; a license is required and the contract of marriage must be witnessed by an eligible clergyman or judge.

The record is clear that the people of Michigan want marriage to be a contract between one man and one woman.

Unhappily, the proponents of gay marriage are unconcerned about the nicities of constitutional governance. Ms. DeBoer and Ms. Rowse are not interested in what the people of Michigan think. They want to be married, and they want the United States Supreme Court to tell them they can marry in Michigan. The voters be damned.

Unhappily, over the years, the Supreme Court of the United States has usurped the power to make laws. The Justices seem to think that appointment to that august bench carries with it the authority to decide what is best for the American people.

No doubt the plaintiffs will argue, and some Justices will agree, that the will of the people, expressed in a 58.6% majority in 2004, no longer applies; that the negative vote of the two university towns presages an “emerging consensus” among the next dominant generation to approve a more permissive code of sexual behavior.

To insist that, in a Republic, the people have the right, the power,  the ultimate authority to make the laws will be be viewed, by some, as caviling, nitpicking pettyfoggery.

So be it. I’ll have more to say on this. Stay tuned.


Sunday, January 11, 2015


Christians, and particularly those of the Roman Catholic tradition, are frequently the object of ridicule. The hatred with which followers of Jesus Christ are regarded by some non believers fuels taunting, insults, confrontation and sometimes even sacrilege.

The Catholic League for Religious and Civil Rights publishes annual reports describing the many, many malicious attacks made upon Christianity in the United States. Books, plays, television shows, art exhibits and public demonstrations mocking Christian churches, beliefs and tradition are commonplace.

Unhappily, these insults are frequently applauded by icons in entertainment and the mainstream media.

Here’s an example from 2013:

New York, NY – At the New York Film Critics Circle Award, Michael Moore presented the Best First Film to David France for his documentary celebrating gay activism, “How to Survive a Plague.” In particular, the documentary honored the day when homosexual terrorists from ACT-UP invaded St. Patrick’s Cathedral in New York City on December 10, 1989. They interrupted the Mass by shouting and waving their fists; they tossed condoms in the air; they spat the Eucharist on the floor; they chained themselves to pews; they stopped Catholics from going to Holy Communion. In an editorial at the time, the New York Times called what happened, “an act of desecration.” Moore said, “I personally like that one.”

The days of the Spanish Inquisition are long gone in Christianity, and the activist militarism of John Brown is no longer celebrated in Western civilization.

By and large, we have learned to respond by communicating verbal protests and then praying for our detractors.

I have no doubt that Pope Francis and the College of Cardinals would sternly condemn the Knights of Columbus if they were to form a posse comitatus  and hang Michael Moore from a tree.

That said, I can’t help but wonder how many of the faithful who were at Mass in Saint Pat’s on December 10, 1989 would hasten to join the mourning if some fundamentalist whacko were to dispatch producer David France.

In the wake of the Charlie Hebdo massacre, we are urged to recognize and be mindful of the distinction between faithful, law abiding Muslims and radical Muslim terrorists.

There’s a difference between theology and feelings. It is difficult to get terribly worked up when the bad guys have bad luck.

My old colleague on the Michigan Supreme Court, John Dethmers, used to say, “the first issue for the jury in a murder trial is, ‘ Should the deceased have went?’”

Muslims who would have seen the hand of a vengeful Allah if the editorial board at Charlie Hebdo had been obliterated in a tornado, may have some difficulty mourning the demise of their tormenters, even if they concede that murder by Jihad is sinful.

The millions of marchers in Paris want to declare war on terrorism. Good luck to them. George Bush did that in 2002. It doesn’t work. Fighting terrorism is like fighting sin. You just can’t kill all the sinners.

President Obama wants to ‘degrade and destroy’ ISIL. ISIL is not a country, it’s a movement. Destroying ISIL is like destroying Communism, or Christianity, Socialism or Capitalism. As long as there are believers, a movement abides.   

I have said it before and I’ll say it again. In a civilized society, murderers should be brought to justice. You can no more prevent murder as a expression of religious fervor than you can prevent murder for greed. Or lust.

In a free country there can be no thought control. The idea of preventative incarceration is a preposterous surrender to dictatorship. Even the Gestapo couldn’t make it work.