Tuesday, June 30, 2015

A More Perfect Union

Few concepts are as fundamental to life, liberty and the pursuit of happiness as the right to marry the person of one’s choice. For those who love liberty and believe in the dignity of humankind, this has been a good week. The Supreme Court, in an eloquent opinion authored by Justice Anthony Kennedy, declared once and for all that marriage equality is the law of the land. “The right to marry is a fundamental right inherent in the liberty of the person,” wrote Justice Kennedy in Obergefell v. Hodges, “and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

Obergefell is a logical extension of the 1967 Supreme Court decision in Loving v. Virginia, which ruled unconstitutional Virginia’s prohibition against interracial marriage. A watershed moment in American legal history, Loving called the freedom to marry “one of the ‘basic civil rights of man’” and recognized that the Fourteenth Amendment would be meaningless if the government could deprive an interracial couple the right to express their love in a lawfully sanctioned marriage simply on account of race. “Under our Constitution,” declared Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

At the time of Loving, Virginia was hardly alone in outlawing interracial marriage. Indeed, many Americans believed that allowing blacks to marry whites violated God’s will and the laws of nature. Democracy had not yet caught up with more enlightened views of liberty and equality. And no one disputed that when the Constitution was first authored, in the days of Jefferson and Madison, when racial inferiority and slavery were acknowledged as the practical realities if not the principles of America’s founding documents, prohibitions against interracial marriage were the rule, not the exception.

But times and context change, as does society’s understanding of constitutional principles. By 1967, nearly 190 years after the nation’s founding, more than a century after Union forces fought and won a civil war, thirteen years after the Supreme Court in Brown v. Board of Education ruled segregated public schools unconstitutional, three years after Congress passed sweeping civil rights legislation outlawing segregated lunch counters and other public accommodations, times had most certainly changed. The Court brought us as a country to a deeper understanding of the Constitution’s core principles.

Nearly a half-century after Loving, many of the same arguments made against interracial marriage were made against same-sex marriage – that the issue of marriage rights is a matter best left to the states and the political process; and that such marriages are a radical departure from centuries-old notions of traditional marriage deeply embedded into the nation’s social fabric.

The beauty of the American Constitution, however, is that under its protections all citizens are granted the same rights and privileges regardless of majority sentiment or the whims of particular state governments. “The Constitution promises liberty to all within its reach,” Justice Kennedy wrote in Obergefell. The petitioners desired simply to enforce the Constitution’s promise of liberty, to uphold the dignity of marriage, and to respect its enduring value as an institution. “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect – and need – for its privileges and responsibilities.”

Justice Kennedy emphasized that the case was not about the right of “same-sex marriage,” but the right of same-sex couples to enjoy the same privileges and benefits granted opposite-sex couples. Just as the petitioners in Loving sought not a “right to interracial marriage” but a right to marry irrespective of race, the petitioners in Obergefell sought the right to marry irrespective of gender. In each case, the petitioners sought “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”

Although public opinion in recent years has advanced rapidly in favor of marriage equality, there remain Americans who disagree with same-sex marriage on the grounds of sincerely held religious beliefs and long-held notions of traditional marriage. These Americans have the freedom to believe and speak as they wish. “But when that sincere, personal opposition becomes enacted law and public policy,” instructed the Court, “the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

To prohibit same-sex marriage violates the dignity and liberty of the couples affected. To recognize same-sex marriage causes no recognizable harm, restricts no one’s liberties, and violates no one’s rights. “The limitation of marriage to opposite-sex couples may long have seemed natural and just,” noted Justice Kennedy, “but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The four dissenting justices in Obergefell contended in different ways that the Court’s decision was an attack on democracy, an invalid exercise in policy making by five unelected justices; in short, full-fledged judicial activism. Although the view that the courts should generally defer to the elected branches is a defensible position, the four dissenters have been highly selective in their applied deference to democratically enacted laws. By overruling congressional attempts to regulate money in politics (Citizens United) and imposing restrictions on the availability of guns (District of Columbia v. Heller), the dissenting justices have secured a solid footing in the judicial activist camp.

For Justice Antonin Scalia, the answer to the question presented in Obergefell was simple: “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But if Scalia’s reasoning is correct, then it logically follows that state-sanctioned racial segregation in education and housing are constitutionally permissible despite modern understandings of the Fourteenth Amendment.

Though history and tradition are important to constitutional interpretation, the Constitution does not require that we apply 18th century morality and values to 21st century controversies. “The nature of injustice is that we may not always see it in our own times,” wrote Justice Kennedy. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. . . . Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

In rendering constitutional decisions and interpreting open-ended phrases such as “liberty” and “equal protection,” value judgments are a given. It is why the power of the President to nominate Supreme Court Justices is so important. There are no neutral principles that allow Justices to adjudicate basic questions of political morality and the essence of liberty, equality, and the claims of minorities in a democratic society. Ever since Marbury v. Madison, when the doctrine of judicial supremacy took hold and the Supreme Court was established as the final arbiter of the Constitution’s meaning and effect, it has been the proper role of the judiciary to interpret and apply the Constitution in the context of the changing times in which we live. Indeed, the meaning and understanding of core concepts may change or expand as society progresses, technology advances, and the course of history unfolds.

As James Madison insisted in The Federalist Number 10, democratic legitimacy requires that the interests of minorities be protected against majorities who deny or unfairly discount their rights and interests. In Democracy and Distrust (Harvard University Press, 1980), constitutional scholar John Hart Ely explained, “the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others . . .” Democracy is thus enhanced when the courts closely scrutinize laws that disadvantage minorities long victimized by prejudice and discrimination.

In the end, the majority opinion in Obergefell was a simple statement of human equality, dignity, and individual liberty that should be celebrated by all:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 
Obergefell will rightly go down as a seminal decision in American constitutional law. It is one for the ages. As an American, I am proud of our Supreme Court and of our country, for we have come one step closer to “a more perfect Union,” a nation based on tolerance and understanding, and that embraces liberty and justice for all.

Saturday, June 20, 2015

Sunday Mornings and Hot Dog Stands of Days Long Past

Our death is not an end if we can live on in our children and the younger generation. For they are us; our bodies are only wilted leaves on the tree of life. – Albert Einstein
From about the age of ten until I went off to college, I sometimes accompanied my father on Sunday mornings to Lutheran churches scattered across New Jersey. As the Assistant to the President of the New Jersey Lutheran Synod, and later as President, my Dad was frequently invited as a guest preacher, his Sunday morning outreach a form of diplomacy within the social and political context of the Lutheran Church. We would get up early and eat breakfast before driving to exotic sounding places like Perth Amboy and Hoboken, Red Bank and the southern reaches of the Jersey shore, where my Dad was sent as an emissary of sorts for the Synod Office.

Although we lived in the center of the state, the churches we visited on these Sundays were often at the far reaches of New Jersey, as much as one or two hours from our house in Hightstown. So my Dad enjoyed it whenever I was willing to join him. And despite having to sit through a worship service in an unfamiliar setting, followed inevitably by handshakes and introductions to dozens of adults interested in meeting the “pastor’s son,” I enjoyed these mornings. The car rides to and from our destinations gave us a chance to talk, about school and sports, history and current events, my Dad’s work, and anything else then on our minds. It was, in retrospect, a valuable and formative time in my life.

My Dad knew intricately the detailed geography of New Jersey in a manner that only someone who traveled 30,000 miles a year on its roads could, and he always had a story to tell about the history of the towns and cities we passed along the way. I sat through many of his sermons during these years and listened as he relayed the week’s Gospel lesson to the social and economic realities of the times. This was the 1970’s, a volatile interval in our nation’s history, when the news was filled with talk of Vietnam and Watergate, women’s liberation, teenage drug use, racial tensions, OPEC and gas lines. As I grew older and became more attuned to the world and our surroundings, my Dad and I talked about these issues as he contended with the daily struggles of his Lutheran congregations, which often reflected the conflicts and pressures of the wider society.

On our way home on most of these Sundays, Dad always seemed to know where to find the best hot dog stands and burger joints. He was particularly fond of Toby’s Cup near Phillipsburg, a tiny wooden shack on the side of the road, with two picnic benches in the parking lot the only seating available. It was here, according to Dad, one found the “best hot dogs in the world.” I am not sure what made them taste so good, what secret formula and combination of oils and spices made them so memorable, but if my recollection has not betrayed me, my Dad was right. We would sit outside on a makeshift picnic bench, or on the hood of the car, and together experience fifteen minutes of culinary satisfaction.

“We do not remember days, we remember moments,” wrote Italian poet Cesare Pavese. It is the little things, the uneventful memories, of conversations and car rides, that I find myself thinking about since Dad died. With Father’s Day approaching, I realize that this is the first year of my adult life that I have no need to buy a card or make a phone call or send Dad a book or polo shirt. It has only been ten weeks since he left us, but I miss our past conversations, his encouragement and support, and his interest in my life, Andrea’s life, and the lives of my children.

*     *     *     *
District of Columbia Courthouse

On a few occasions when I was an Assistant United States Attorney in Washington, DC, Dad drove into town to watch me in court. One morning, when I was a young prosecutor assigned to handle arraignments and post-arrest bond hearings, I knew that he was planning to stop by and observe some of the proceedings. One-by-one, as cases were called based on the previous night’s arrests, I occasionally glanced into the audience to see if he had yet arrived, quietly hoping he would see me argue to the magistrate judge in a lawyerly manner that the defendant charged with murder or armed robbery should be detained or required to post some exorbitant bail with strict conditions of release. A string of such cases were called around noon that day, and I successfully argued for stringent bail amounts and, in a few cases, pre-trial detention. In each case, I meticulously outlined for the court the flight risks and danger to the community these defendants represented. I was the protector of the city, the valiant knight defending the safety and tranquility of the people.

After the U.S. Marshals had removed the last of these hardened criminals from court, I noticed Dad enter the courtroom and take a seat. Frustrated that he had missed such brilliant lawyering, I looked forward to the next set of defendants, whom I hoped would be similarly dangerous criminals charged with violent and deadly deeds. It was not to be. Instead, escorted into the courtroom were a motley collection of street prostitutes in fishnet stockings. As a half dozen of these colorful and scantily clad women paraded in, the courtroom quickly developed the feel of a lively Halloween party. As the judge formally read the charges of soliciting prostitution, a misdemeanor that hardly anyone in Washington even believed was a crime, I looked down at my files and acted as if I was writing down something important. From the counsel table, I opened one case file after another and, with as much dignity as I could muster, announced, “the United States does not oppose OR Bail,” courtroom lingo for “own recognizance,” or in lay terms, “let ‘em out and hope they show up.” I made no eloquent pleas for protecting the community and I engaged in no hard fought battles with seasoned defense attorneys over the strength of the evidence.

After the ladies of the night and a few other minor criminals charged with shoplifting and unlawful entry were processed in summary fashion, the court called for a recess.

“So this is how you spend your days?” Dad asked during the break. I tried to tell him about the robbers, burglars, and murderers I had saved us all from, but he would have none of it. Years later, Dad reminded me often of my gritty prostitution days.

Fortunately, Dad saw me in court on two other occasions, once as I examined an undercover police officer in a federal drug trial, and another time when I argued before the United States Court of Appeals for the District of Columbia Circuit. He was fascinated and thrilled to watch his son in “action.” But by the time I advanced to the Rape and Homicide Units, he had retired to North Carolina with Mom and never saw me in court again.

Having chosen very different professions, my Dad could offer little practical guidance for the challenges I faced as a lawyer and prosecutor, but he listened well and presented an understanding ear whenever I relayed troubles with a difficult judge or recalcitrant witness. And in more recent years, I took solace in the thought that Dad would listen if I needed to express frustrations or concerns about my career, even if he could not relate directly to what I did. That’s the thing about when a parent dies, wrote Mitch Albom in For One More Day; you lose part of your support network, which you had always until then taken for granted. “[Y]ou feel like instead of going in to every fight with backup, you are going into every fight alone.”

*     *     *     *
The Girls and Me circa 2008

As I journey through life with only memories to sustain the days and years gone past, I am blessed with fresh insight and fulfillment from the people in my life who enrich me. While Father’s Day is now a reminder of what is lost, it is also a celebration of the abundant joy and pleasure that having two daughters has brought to my life. Lately, I am confounded by how quickly time passes. My “little girls” are now in their twenties, the youngest, Hannah, entering her senior year in college. Where her life leads her and what lies ahead are mostly beyond my control, though I will offer whatever guidance and insight I possess, just as my Dad did for me.

Jennifer turns 25 in September. I see her only occasionally now, as her life and career is in Washington, DC, where she faces her own challenges, pressures from work, and the search for a fulfilling and meaningful life. I cannot mentor Jen in her career of graphic design any more than my father could mentor me in the law. It is at times disheartening, because I want always to be there for my children and make the world work just right for them. And yet, I know they must figure things out on their own terms, and that I must allow them to live, learn, and make their own mistakes. For in the words of Hodding Carter, Jr., “There are two lasting bequests we can give our children. One is roots. The other is wings.”

As our children grow older and develop into the mature adults we desire them to be, we know that our hold on their lives lessens a little with each passing day. They must venture forth and encounter their own realities; learn to balance their dreams, ideals, and aspirations with the demands of life. “It is into this disorienting and sometimes disappointing world that you now plummet,” said Ken Burns during a recent commencement address at Washington University, “… unprotected from the shelter of family and school.”

I hope someday my daughters recall fondly the times they spent in a car with their Dad, the baseball games we attended, our conversations and shared adventures.  For it is the memories that sustain us and help us make sense of the past; that allow us to live with passion and purpose in the present. “We are all the pieces of what we remember,” wrote Cassandra Clare. “We hold in ourselves the hopes and fears of those who love us. As long as there is love and memory, there is no true loss.” 

Happy Father’s Day to all Dads past and present.