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Counterpoint: Why Keith Burris Got It Right
By Fletcher Word
Sojourner’s Truth Editor
You can read the entire
article by our esteemed guest columnist and not know what
Keith Burris of The Blade wrote about the Judge C. Allen
McConnell affair – an affair that has now become national
news.
Burris wrote: “No judge
has a right to opt out on his responsibilities because of
personal beliefs. No judge can selectively pick and choose
the laws he wishes to enforce.”
Now, Burris wrote a bunch
of other stuff about the inconvenience to the gay couple
that Judge McConnell declined to marry, and the judge’s lack
of courtesy in not informing them himself and the impact of
the recent Supreme Court ruling on black churches.
None of those side issues
really matter. The issue at hand is the law and, it appears,
our esteemed guest columnist and the judge in question, both
officers of the court, have forgotten about the importance
of the law.
Some years ago, The Truth
interviewed a judge about how he approached issues and
circumstances on the bench that might bring personal issues
into play – “You have to detach yourself,” he said of his
obligation to remove personal considerations from the
process in order to adhere to the law.
Keith Burris, on that
matter, was 100 percent spot on – “No judge sits upon the
bench to enforce his personal convictions,” wrote The Blade
columnist. Who among us can take issue with that?
Apparently our esteemed
guest columnist can take issue with that and he references
the utterly indefensible Scott v. Sandford decision
that the U.S. Supreme Court handed down in 1857 holding that
African Americans, whether enslaved or free, could not be
American citizens and therefore had no standing to sue in
federal court.
It was a dreadful
decision, a painful decision. But if one wants to use it as
an example of why judicial “nullification” and
“interposition” should be condoned – to borrow two of Dr.
King’s famous words – one uses the Scott decision
mistakenly.
The Scott decision,
to contradict our esteemed columnist whose grasp of history
is shaky at best, was not the law of the land for 100
years. It was the law of the land for barely nine years. The
ruling was superseded by the 14th Amendment of
the Constitution in 1866 and had been, in fact, moot for
years once the Civil War started in 1861.
The McConnell decision to
judicially nullify the Supreme Court Obergefell
ruling is comparable to what generations of southern judges
and governors did after the passage and ratification of the
14th Amendment when they decided not to recognize
the equal rights the amendment granted to African Americans
and ultimately to all citizens, even gay citizens as Justice
Kennedy wrote two weeks ago.
I also have to take issue
with our esteemed columnist’s opinion that because this
country was “ostensibly” (his choice of word) founded on
Christian principles, those Christian principles must guide
a judge’s decision about whether or not to follow the law.
“Ostensibly” being the operative word in his continued
misreading of history.
Many of this nation’s
founding fathers were Christians but they also recognized
the danger presented to citizens by governments dominated by
religious fanatics operating in the name of Christianity.
I’m sure our esteemed columnist, being such a student of
history, remembers the Christian fanatics who decreed that
adulterous women should be drowned, witches should be burned
at the stake and Jews should be expelled from their
countries, to name a few of the excesses of the times.
I’m sure he remembers the
Christians who decided that slavery was part of their
tradition and that the Bible approved of the slavery of
those of darker skin, who were, of course, less than human.
That’s an integral, if not particularly endearing, part of
the Christian tradition.
Our founding fathers,
mindful of these excesses, determined that this should be a
nation of laws, not of religious zealotry (see the 1st
Amendment) and that laws should be passed by a
representative body, approved by an executive and, when
necessary, adjudged to be within the parameters of
constitutional limits. They also decided that these three
functions should be performed by three separate branches of
the government, thereby placing additional safeguards –
checks and balances – on the rights of individuals.
The result of this
remarkable constitution is that, in spite of the passage of
some very bad laws over time and, occasionally, remarkably
bad Supreme Court rulings, most of the time, as a nation, we
get it right when it comes to enacting and reviewing laws.
The question isn’t whether
we, as a democracy, will occasionally enact bad laws. The
question is: do we have the democratic mechanisms in place
to correct what we get wrong. That’s exactly what those
framers constructed.
Most of our problems, the
strife we experience as a nation, occur when we don’t follow
the law.
What’s more, I know our
esteemed guest columnist, an attorney himself, also has to
believe that the High Court gets it right, sometimes after
far too long a wait – see Plessy v. Ferguson and
Brown v. School Board – far more often than not, or else
he wouldn’t have taken on a calling that might otherwise
lead to such utter frustration time after time again. I also
believe that to be so because he cited only one bad decision
in his column even if he had no understanding of its
historical context.
I do take issue with
Burris on one point and that is when he suggests that this
issue of accepting gay marriage is a black church problem.
In fact, it is a church issue – black, white or brown. So
far the Unitarians and Episcopalians have stepped forward to
say that they will recognize and perform gay marriages.
Baptists and the Catholic Church, at the other end of the
spectrum, will accept such marriages … wait for it … when
hell freezes over.
The main issue here and
now, however, is the decision by Judge McConnell to flout
the law of the land. On numerous occasions, this honorable
man, and indeed he is a very honorable man, has taken an
oath to uphold the law of the land, to uphold the
Constitution of the United States.
The Supreme Court of the
United States has ruled that equal protection under the law
extends to gay couples who seek to marry, to live in dignity
and to have access to the same protections under the law
that straight couples enjoy. Like it or not, it is the law
of the land. And judges who run for office promising voters
that they will uphold the law of the land, have absolutely
no discretion when it comes to applying the law of the land.
This is the oath they have taken. This is the bargain they
strike with voters.
Years ago, in 2002, The
Truth interviewed a judge and asked him about the issue of
working through whatever personal issues he might have when
he was sitting on the bench. Said Judge McConnell then: “You
have to detach yourself.”
Well said, Judge. Very
well said!
Point: Why Keith Burris Was
Wrong
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