COMING OUT

The other night Stephen Colbert had a guest on the Late Show by the name of Ellen Page. Beautiful young lady. A movie star. She was there to plug a recent release called “Free Held” based on a true story about a gay police detective who died of cancer.

Colbert asked her about how her life had changed since she had “come out” as a gay person about five years ago. The audience burst into applause. Whereupon Ms. Page described how good she felt being openly known as a homosexual; how happy she is to be done with shame and self doubt.

Colbert asked her what she thought of the folks who oppose gay marriage on religious grounds. She basically said that they will come around when they have had enough exposure to LGBT people in the movies, on television, and on the Internet.

Ms. Page is very articulate. She evokes sympathy for herself and by extension to all people who identify themselves as Lesbian, Gay, Bi-Sexual or Transgender.

Stephen Colbert asked the question about religious belief in a very friendly way, mentioning that, while he is a man of faith, he knows that he believes lots of things that just aren’t so. Guardian Angels, for example. It gave his guest a chance to assert her unqualified support for the First Amendment guarantee of religious freedom but remind the audience that lots of bad things have been done in the name of religion.

Undoubtedly, the positive audience response to Ms. Page’s outing was in recognition of her courage in confronting the discrimination, ridicule and ill will often heaped upon homosexuals in America.

Other audiences have cheered Kim Davis for her courage in accepting imprisonment rather than offend her personal belief about the morality of same sex marriage. 

And so the battle between religion and sexual liberation spans the gap between a feisty Kentucky County Clerk and a sophisticated late night talk show. For both sides, it seems to be all about how you feel.

What is missing, for me at least, is any conversation about public policy.

Whether homosexual conduct does or does not violate the tenets of any particular religious belief should have no influence on public policy. Some religions abhor dancing or gambling. At one time many States had laws against working on Sunday. So called ‘blue laws’ even prohibited playing baseball on Sunday.

There are few if any vestiges of such laws still on the books. The reason is simple. The general opinion of the citizenry does not support them.

Statutes prohibiting same sex marriage may very well go the way of the blue laws some day. That day has not come, and there is no certainty that it will ever come.

The National Health Interview Survey, administered by a branch of the U.S. Census Bureau, reported in 2014 that 1.6% of the American people identify themselves as gay or lesbian and 0.7 percent consider themselves as bisexual.

Perhaps, as it has been suggested by some, that survey and others which reach similar conclusions are skewered because closeted homosexuals don’t admit to their conduct. Still, there is plenty of evidence from actual referenda on constitution issues that there is overwhelming public support for traditional marriage.

Whether in or out of the closet, “being” a homosexual is like “being” a smoker. It is a status determined by conduct. What you do defines what you are.

Political support for same sex intimacy got its boost from the Supreme Court back in 2006 in Lawrence v Texas. That decision essentially said that what consenting adults do in private is their business and not subject to government control. Now, less than ten years later the Supreme Court has opened the closet door and sanctioned public recognition of homosexual conduct.

In my church we believe that we are all sinners. When we come out of the confessional we feel relieved of shame and self doubt. Maybe even Kim Davis would have applauded Ellen Page.

THE ROCK

Well, the Pope has come and gone. It was a whirlwind visit capped by a Mass for a mass of people; nearly one and a half million.

Now the talk is whether Francis, the charismatic Pontiff, is going to change the Catholic Church. “Modernize” it, as they say.

Some conservative folks had hoped that he would condemn gay marriage. He didn’t. On the other hand, he didn’t endorse it either. What he did was to preside over a carefully scripted celebration of traditional marriage. Sort of reminded me of the old song: “You gotta ak – sen –chu –ate the positive, ee – lim -- anate the negative. Don’t mess with mister in between.”

The secular media has spent much time talking about the Pope’s famous comment, “Who am I to judge?”  They see it as an endorsement of the secular moral commandment: Thou Shalt Not Be Judgmental.

Many of us were tempted to answer the Pope’s rhetorical question with something like this: Who are you? You’re the Pope, for goodness sake. You occupy the Chair of Peter, to whom Jesus said “Upon this rock I shall build my church. Whose sins you shall forgive, they are forgiven, whose sins you shall retain they are retained.” It’s your job to teach folks about right and wrong, to pronounce infallibly, ex cathedra, ‘from the chair’ on matters of faith and morals. What do you mean, “Who am I?”

The truth is that the Chair of Peter is not a comfortable seat for a humble man. Francis teaches us that loving the sinner is more important than hating the sin. Indeed, he challenges us to forget about hating anything – sin included. Especially since we are all sinners. Especially because the divine gift of free will means that all human beings have the capacity to do what they know they should not do.

The Church reserves condemnation to the human conscience. That’s what the Sacrament of Penance is all about. “Bless me Father, for I have sinned.” “I have sinned.” Not, the neighbors say I have sinned or the media says that I have sinned, or the Church, or the Pope says that I have sinned, but I am telling you that I have sinned. I am my only accuser.

It’s called conscience, and it is the moral compass that holds all of human society together. At the University of Detroit, nearly three quarters of a century ago, Jack Roland taught us that Ethics is the science of the “oughtness of things.” He told us that human beings have an instinctive inclination to think about what they should or should not do, and that free will involves the constant tug of war between ‘I wanna’ and ‘I awta.’

Dwight Eisenhower put it this way; as individuals and as a nation, we should seek always to act in our enlightened self interest. Perhaps enlightenment is the one moral imperative on which all people of good will can agree.

We live in an age of communication. We are surrounded by the incessant drumbeat of advertising, solicitation, news, information, and personal communication. We are emailed, facebooked, tweeted, texted, and harangued non stop from television, telephone, radio and computer. Just how much of it is fairly called enlightenment is hard to say.

But it does seem to me that enlightenment about the oughtness of things should be given a rather high priority in human communication. In the last analysis the experience of mankind is the best teacher, and we ignore it at our peril. 

History, indeed, is an imperative teacher. He who does not learn the lessons of history is condemned to repeat the mistakes of the past. It makes no sense to mandate the latest dicta of behavioral science in our classrooms while forbidding the teacher to post the ten commandments on the bulletin board.

We Americans are the fortunate heirs of the civilization known as Christendom. It has enabled us to become a people governed by representatives of our own choosing, committed to the rule of law, and united in the pursuit of justice and liberty.

The Roman Catholic Church is an important part of that heritage. The Pope is its leader. He is not a judge. He is a teacher.

Pope Francis is an Argentine. He doesn’t speak our language, at least not very well, so far. But he is the Pope. The Vicar of Christ on earth. He is a blessing and wellspring of enlightenment for all men and women of good will. He will help us all to figure out for ourselves what is right and what is wrong.

And in the end, our personal judgment is what really matters.

KIM DAVIS AND BROWN v BOARD OF EDUCATION

The layman’s notion of judicial review is that the Supreme Court can “invalidate” a state law which it determines to be unconstitutional. Admittedly, this is the way newspapers report so-called ‘landmark’ decisions. 

Judicial review is not limited to the United States Supreme Court. Every court, from the lowest county traffic judge, has the same power to determine whether a state law does or does not comply with the state or federal constitution. If a court decides that a statute is unconstitutional, it is the duty of the judge to decide the case as though the statute in question does not exist.

That decision establishes the law of the case, and unless appealed, it determines finally and irrevocably the rights of the parties to the litigation. 

The decision, however, does not determine the rights of any other party. The Fifth Amendment to the United States Constitution affirms that no person shall be deprived of life, liberty or property without due process of law. Due process requires that a person be given a fair hearing before he or she can be jailed, fined or ordered to do anything by a judge. 

In Brown v Board of Education, the Supreme Court wisely overruled the case of Plessy v Ferguson and opined that the United States Constitution is color blind, ruling that the twenty black children of thirteen Topeka, Kansas parents were entitled to attend their local white public school. 

The order issued in that case affected those 20 children and only those 20 children. It was, however, clear to everyone that the Supreme Court was of the opinion that public school segregation laws were unconstitutional and that any state which would continue enforcing such laws would face the obvious fact that their actions would be challenged in court, and that the lower courts would almost certainly defer to the opinion of the United States Supreme Court, unless there was some logical and significant difference in the facts.

Applying the Brown rule in a nation of over 200 million people was not a simple task. Not only in the previously segregated Southern States, but in densely populated Northern cities, the natural tendencies of people to prefer neighborhoods having distinct racial or ethnic character fostered de facto segregation in many neighborhood public schools.

As a result, a number of new cases were filed, leading to a decision commonly referred to as Brown II. In it, the United States Supreme Court ordered a number of State Attorney Generals to submit, within a stated period of time, their plans for the desegregation of public schools “with all deliberate speed.”

Brown II resulted in a complete reversal of Brown I’s salutary finding that the Constitution is color blind. Quite the opposite, Brown II required that students, both black and white, be assigned to schools based on the color of their skin, in an effort to achieve statistical integration.

The result was a period of more than a quarter century of judicial activism in which federal judges ordered children transported by bus long distances from their homes, ordered local taxes to be assessed, ordered school bonds to be issued and ordered new school buildings constructed.

Now, more than 60 years after Brown, more than 70% of black school children still attend schools which are more than 50% black; more than 30% of black children attend schools that are 90% black and about 15% of black children attend schools that are 99% black.

Those statistics are not the result of any organized effort at nullification. They are simply the consequence of a free people in a free country making their own decisions for their own reasons.

Abraham Lincoln made it clear that the Supreme Court makes the law of the case and not the law of the land. That is not learned only in law school; it should be taught in high school civics. Article III of our Constitution vests judicial power, and only judicial power, in the nation’s courts. Courts are empowered to dispense justice on a case by case basis. They are neither established nor equipped to make laws, amend laws, repeal laws or order legislatures to change laws.

Whether a perceived landmark case like Obergefell v Hodges will result in a significant change in American culture will depend on the extent to which the people of the nation accept and act upon the Court’s opinion. If state marriage laws are changed, a cultural tsunami could well occur. If they are not changed, The Supreme Court will pursue a fool’s mission if it attempts to mandate nationwide compliance with Obergefell one case at a time.  

ROWAN REVOLT

September 26, 2015

Hon. Greg Stumbo

P.O. Box 1473

108 Kassidy Drive

Prestonburg, KY 41653

Dear Mr. Speaker:

My name is Thomas E. Brennan. I am a former Chief Justice of Michigan and Founder of the largest accredited college of law in the United States.

I write to alert you and your colleagues to the fact that you are confronted with a unique and historic opportunity to assert and defend the Constitutional right of the people of the Commonwealth of Kentucky to enjoy a republican form of government and to exercise the domestic sovereignty guaranteed by the Tenth Amendment to the Constitution of the United States.

The Rowan County Clerk has lately resisted the order of the United States Court for the Eastern District of Kentucky to issue marriage licenses to persons of the same sex in violation of Kentucky Revised Statutes Section 402.005.

She has done so on the mistaken claim that her personal religious beliefs transcend her sworn duty to obey the law. She has sought an amendment to the law exempting her from its rule as an accommodation to her religion.

Such an accommodation would be a departure from established precedent. There is a better way for her and Kentucky to protest the Supreme Court’s usurpation of the rule of law.

You and your colleagues can initiate a peaceful, non-violent form of civil disobedience which will reestablish the primacy of the written words of the United States Constitution.

I urge you to consider adopting an amendment to Section 402.005 of the Statutes which would require County Clerks, whenever they are under court order to issue a marriage license in violation of Section 402.005, to print on the face of the certificate of license, in bold 16 point type, a statement that the license is issued in violation of Section 402.005, upon the order of a court identified therein. Thus:

THIS LICENSE IS ISSUED IN VIOLATION OF KENTUCKY REVISED STATUTES SECTION 402.005 UPON THE ORDER OF THE UNITED STATES COURT FOR THE EASTERN DISTRICT OF KENTUCKY.

You and your colleagues are oath bound to support the Constitution of the United States. You are not oath bound to obey the dictum of the United States Supreme Court when they assume the power to amend the Constitution by imagining new interpretations never intended or considered by those who ratified the Constitution or its Amendments.

By adopting this amendment, you will resolve the current misplaced confrontation between the Clerk’s religious beliefs and the her sworn duty, and you will make, on behalf of the citizens of the Commonwealth, and indeed of the nation, a statement that we are a free people not beholden to a judicial oligarchy.

Sincerely,

Thomas E. Brennan

Copies sent to:

Louisville Courier-Journal

Lexington Herald-Leader

Lansing State Journal

Detroit News

Detroit Free Press

Cincinnati Enquirer

Wall Street Journal

New York Times

Chicago Tribune

JESUS CHRIST

I remember some years ago, in the heat of a political campaign, former Michigan Congresswoman Martha Griffiths, speaking of an opponent who was a Unitarian, famously observed, “The last time the name Jesus Christ was heard in my opponent’s church was when the janitor fell down the basement stairs.”

For some reason, that name, revered by Christians throughout the world, seems to have some palliative effect on life’s inevitable misfortunes for a great many people.

I recall my pal Mike Devine, of sainted memory, telling about an episode at Franklin Hills or Knollwood during an invitational tournament at which he was the guest of a Jewish lawyer. One of their opponents, also a gentleman of Jewish tradition, had a habit of greeting every poorly executed shot or missed putt with the expletive “Jesus Christ!.”

Mike, whose pixie-esque sense of humor permitted him a measure of candor not available to most of us, sidled up to the fellow and said, “I don’t think Jesus is going to help you very much. He’s my guy. Why don’t you say “Holy Moses?”

Phillipians 2:10 says:

…For this reason also, God highly exalted Him, and bestowed on Him the name which is above every name, so that at the name of Jesus EVERY KNEE WILL BOW, of those who are in heaven and on earth and under the earth, and that every tongue will confess that Jesus Christ is Lord, to the glory of God the Father.

Perhaps it is just a universal human trait to appeal to the divine whenever life’s daily disasters serve up a dose of disappointment or a dish of dissatisfaction.

In any case, in a world full of flippant JC’s and OMG’s, it is a rare thing to think or talk about the Man from whose birth all of our days are counted and whose simple lessons about the human condition sparked a civilization that harnessed the atom and went to the moon.

But that’s what Polly and I did tonight. Our parish is hosting a thing called ALPHA, described as a series of interactive sessions to discuss the Christian faith in an informal, fun and friendly environment. We went, had dinner, watched a video and shared amiable conversation, hearty laughter, and personal insights with two other couples at our table.

The video featured a British lawyer who told of his personal journey of faith. In a very lawyerlike way, he proved that there really was a man named Jesus Christ who really did live in Israel two thousand years ago; that he really claimed to be the Son of the Creator of the universe, and that his followers claimed that he rose from the dead, which no one has ever proved didn’t actually happen.

It was a sufficient dose of Christianity to launch a spirited discussion around our table about belief, marriage, children, grandchildren, and whether indeed the whole world is going to hell in a hand basket.

I couldn’t help but think that the two or three hundred people in that room are the vanguard of a religious remnant, clinging to a belief system scorned by the secular world around us, and watching each subsequent generation slip away from the moorings of faith that have held our generations hard to the tiller of the ship of state.

In the last analysis, religion is all about dying and death. Belief in a life hereafter has been the bulwark of western civilization. Judgment Day is the visualization of human conscience. Saint Peter at the pearly gates is the allegory of our moral compass.

Pope Francis is coming to the United States. Our President will pay him the dubious respect of seating him at table with a roomful of theological dissenters, sexual adventurers, and pontifical naysayers.

Jesus Christ washed the feet of sinners and silently suffered the spit of his tormenters. Francis will do the same. The ridicule, shame, disgrace and blood of martyrs have always been the seeds of Christianity.

Secularists may mock us, ISIS may behead us, but Jesus Christ will be with us until the end of time. Christianity will rise again. And again. And again.