Home World Politics Judge Moore, Obergefell, and the Sexth Commandment

Judge Moore, Obergefell, and the Sexth Commandment

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(L) Beretta, Maxwell, Brinson, Pittman, Peeples, Republicans who lost the Primary. (R) Judge Roy Moore, who won.

by Mary W Maxwell

A front-page New York Times headline on September 28, 2017 said “Alabama’s Revolution May Spark a GOP Civil War.”  Wouldn’t it be nice if they meant my revolution – I talked about Monsanto, Pizza-gate, Boston Marathon, and vaccination on the campaign trail. But no, they were referring to the Roy Moore, the “controversial judge.” He quotes the Bible and the Constitution at length, how controversial can you get? By the way, he also spouts Henry Lawson, and when we first shook hands he hit me with “The Drought in Queensland.”

Moore is not yet a senator; he still has to face the Democrat, Doug Jones, on December 12. I will gladly stump for Moore.

Towards the end of my campaign, the TV gave all its coverage to the three big candidates, even unto referring, unabashedly, to “the three-man race in Alabama.” That is, Luther, the judge, and Mo Brooks – who, by running, did not risk his seat in the House of Reps.

You may recall Mo Brooks pictured wearing his baseball glove after the shoot-out in which Steve Scalise was almost fatally injured in June, 2017.  As of yesterday, Scalise returned to his job in Congress. I am disgusted that no one in public life mused aloud about the possibility that “the baseball massacre” was politically planned rather than being the work of nutter, who died in situ.

Gayness, Abortion, etc.

I’m sure I’ll be asked how I, an LGBT supporter, could assist Moore who is virulently against same-sex marriage, or is indeed is anti-gay. Frankly, I don’t care what Moore’s prejudices are, and he won’t have a place to air them in Congress. Who knows better than Moore that “sex” is not a federal matter.

Feminists may be appalled to know that I believe the case of Roe v Wade was wrongly decided in 1973. Why? Because it is not for the US Supreme Court to declare unconstitutional a matter that doesn’t actually violate the US Constitution. SCOTUS used a sleight of hand, saying that the Fourth Amendment’s proscription of violations of privacy meant that the state of Texas could not enforce its criminalization of abortion.

IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(I can see how it might work the other way. What if a state mandated abortion – as China did for women who broke the one-child rule? The woman could argue “You can’t seize me, as the Fourth Amendment’s protects me against ‘search and seizure’ by the authorities.”)

Note: I don’t rule out that shadowy figures had a hand in SCOTUS’s decision. Recall Dr Richard Day, a Rockefeller Insider, predicting in 1969 – four years before Rode v Wade – that abortion would become acceptable. How’d he know, unless he was sure how legislatures and courts would behave?

Constitution Uber Alles (IMHO)

But doesn’t the US Constitution make SCOTUS the highest court of appeal for any case in the 50 states? Yes, it does. It says in Article III, section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties … to all Cases affecting Ambassadors … to all Cases of admiralty and maritime Jurisdiction; –to Controversies to which the United States shall be a Party; — to Controversies between two or more States [etc]…. In all the other Cases … the supreme Court shall have appellate Jurisdiction, both as to Law and Fact…. [emphasis added]

When the case of Lawrence v Texas reached the US Supreme Court, the justices should have said — I opine — that “The conviction of the accused under the Texas law was correct.” It was a statute that made sodomy a crime. I think it was a bad law and needed changing – by the people. The Supreme Court must always uphold the principle of states’ rights, as it is a main job of the “great nine” to protect the Constitution itself.

During the Alabama campaign I kept preaching “You either have the Constitution or you don’t.” It is foolish to want the very great protection that such a legal document makes possible and yet say that we can ignore parts of it in the face of new cultural insights. Stick with the Constitution and you’ll be safe, Mate.

Full Faith and Credit

In regard to same-sex marriage, I think SCOTUS did a good job of protecting the Constitution in the 2013 case of US v Windsor. Its decision went against a Judge Moore or any such state person who abhors the idea of a married couple in their state being male-male or female-female.

In Windsor, SCOTUS referred to the “full faith and credit” clause of Article IV, section 1, of the US Constitution. It says:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

The Supreme Court ruled against Congress’s Defense of Marriage Act which explicitly said that the full faith and credit clause could be ignored when the subject was marriage.  Can you imagine! Thank you, Court.

Say two lesbians in Massachusetts get married and then move to Alabama. (Gay marriage has been legal in Massachusetts since 2004). Subsequently one of the women dies, and the other asks for inheritance rights as a spouse. Should the Alabama court award this, even though gay marriage is a no-no in that state? Yes. So said the Founding Fathers: each state must honor other states’ Acts, records, and judicial proceedings.

I don’t think any such case came before Judge Roy Moore in Alabama, but if it did he would be obliged to say Yes to the widow. However, he was not obliged, in my opinion, to issue marriage licenses to same-sex couples.

Obergefell

In 2015, the US Supreme Court ruled in Obergefell v Hodges, that all Americans ae entitled to be treated equally, when applying for a marriage license. Justice Anthony Kennedy hit upon the excellent solution of reducing the whole matter to one of equality (or, technically, non-discrimination) under the Fourteenth Amendment:

XIV (1868) Section 1. …  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So after the Obergefell decision, was the state of Alabama obliged to issue marriage licenses to gays? Technically, no. The way it works is that the US Supreme Court decided in favor only of the litigants in that particular case. There is no such thing as SCOTUS making an order for 50 state legislatures to repeal their law (even against, say, racial segregation). Separation of powers, ya know.

But doesn’t Obergefell famously help every gay couple in the US? Yes, but if the state is recalcitrant you’d have to wait for a litigant to brings a local case.

Really, Alabama is like a pouty child. It shouldn’t put citizens through the expense of litigating to get what is already a foregone conclusion: the marriage license will be issued. Normally, states see the handwriting on the wall and amend their legislation voluntarily.

Holding Out Till the Last Minute

It’s said, on the grapevine, that in at least one county, Tuscaloosa, the current policy is “Don’t issue marriage licenses to anyone – gay or straight.” This is because the states-rights maniacs – in whose ranks I proudly appear – are trying to make a point. The state legislature, not Washington, holds the power.

Say an Alabamian gay couple today takes Tuscaloosa county to court for failure to issue a license based on what we all know to be discrimination against gays (even though this is being humorously covered up by a general ban). What will a county or district court rule? It must rule in favor of the gay couple. The precedent set in Obergefell is “the controlling authority.”

It is said that Moore was so naughty that he got banned from his job. I don’t know exactly which state body sought to discipline him or who sued him. He resigned; he was not “fired.” Had Moore adjudicated a case contrary to law I’d be furious with him, of course. But it is my understanding that he didn’t rule on a case. Rather, as Chief Justice, he was bureaucratically the head of Probate Court which issues marriage licenses and he ordered a halt on licenses for same-sex applicants.

Can You Disobey a Court Order?

As for his earlier caper with the Ten Commandments monument, I’ve heard that he disobeyed a court order to remove the monument. So once again, if I’m to be a Moore supporter in the December election, I need to split hairs:  Posting a copy of the Ten Commandments in a courtroom is OK with me (very much so). Disobeying a court order is not OK with me. Rule of law means no one is above the law. Not Roy Moore, not religious principle either.

Granted, judges have often done terrible things by way of issuing court orders. They tell a person to do something that, in principle, is wrong. A highly principled person can choose to disobey, but that will land him in jail. (Consider Fredrick Toben in South Australia.) We need to look at this whole matter on another occasion — it’s bad for us to arm judges with powers and no accountability for their use.

As far as I can evaluate, Moore should have removed the monument and then tried to fight it out. I will appreciate criticism on that. Please don’t think my coverage here is definitive. I am only trying to explain my support for the “finalist” Republican in the current Alabama race. To repeat, his personal stance on gay-ness is simply of no importance. I am much more interested in the intricate workings of the Constitution.

I was pleased, not to say flattered, when Roy Moore said, in one of his speeches, “Mary Maxwell understands the last four words of the Tenth Amendment.” As indeed I do:

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

It will be fun to hear Moore “doing his thing” for the states, and the people, in Congress!

Tuscaloosa the Beautiful

Tuscaloosa is one hour southwest of Birmingham. Its Black Warrior River is breathtaking.  This city, which is the fourth largest in the state, hosts the huge campus of the University of Alabama, shaded by magnificent trees.

When I lived in sublet digs in Tuscaloosa, June and July, 2017, I was happier than I have ever been in the 21th century. Can’t explain it. Happy to the nth degree. Irresponsibly happy! Maybe something in the water?

More likely it was the warm welcome I received. Get this: after more than 30 years of trying to get a mere a nod of approval in Adelaide, a Birmingham radio station played “True Blue” to honor me. John Williamson’s True Blue, I kid you not. Bawled my eyes out.

I could live in Bama forever, but am involved in some business in the North (no doubt Gumshoe readers can guess what that be), and so I’m now renting an apartment, month-by-month, in New Hampshire, an hour from Boston.

The summer in Concord NH lasted till just two days ago (it was 88 degrees on September 27), so there hasn’t been any colorful foliage yet, which is pretty weird for New England.

Must make tracks back to Tuscaloosa, however, to check on something I’ve only just discovered – that it’s the national headquarters for the National Elementary School Press Association. This is an amazing program that gets children involved in becoming media persons by letting them write student newspapers, be photographers, do interviews, etc. Yay!

Finally, in regard to happiness, here’s what goes on regularly (so it is alleged!) in the Tuscaloosa school system:

–Mary Maxwell has peripatetic issues. Email her at mary.maxwell@alumni.adelaide.edu.au

(Photo credit; Central Alabama Republican Women)
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17 COMMENTS

    • Thanks, Cherri. I am now swanning around in Ottawa. The first question put to me by Canadian customs (at Montreal) was “Voyagez Vous avec votre animal exotique?” I thought of a fun answer, but these days you don’t fool around, do you.

      An undocumented female in the queue behind me started to cause a drama so I was spared all but four questions (and no body search):

      Why are you in Canada? “To visit my in-laws.”

      Did you bring them any gifts? “No, I didn’t”

      Did you bring them alcohol or tobacco? “No.”

      No gifts AT ALL?

      Boy, did I feel like a piker. I am going to slip into a liquor shop here and pick up a gift. By the way, in US supermarkets, a bottle of Jacobs Creek cabernet sauvignon goes for $6.90. At today’s exchange rate that’s $8.78 AUD, or $8.61 CAD.

      • Wow, geez those Canadians like them selves lol, glad you found the Aussie bottle 🙂 hope you had some after all that. Hope all went well anyway, Sorry for the late reply, just found this part of the site, 🙂 Byeeee

  1. Mary ,
    yes Oz is a very hard place to get ahead and be recognised for genuine productive work . Unless one has connections . Today one is either in with them or without . Great country mostly good people but the system is working against the majority to serve the minority .

    • I see what you mean, Berry. “They” are so dang clever.

      Anyway, I wish “equality before the law” would be diligently guarded in other matters — RELATED TO INDICTMENTS.

      Yay! Whoopee!

  2. Mary, your view on the same sex “marriage” is dependent on the definition of marriage. According to my dictionary, “marriage, the ceremony, act, or contract by which a man and a woman become husband and wife: the union of a man and woman as husband and wife.”

    Therefore if two people of the same sex apply for a marriage licence, they should be knocked back. There needs to be a different word “invented” for the act of two same sex people wanting to form a union in parallel to what is known typically as marriage. Then legislation could be passed to make such a union legal.

    • What you say seems to me to be about ownership of words, like that business of how some people bleat about losing the word “gay”. I’ve been with my partner 33 years, and marriage as an idea has never cropped up in all that time until recent years, and only because de-facto law is not as user-friendly as its made out to be. Getting older now, we are finding that issues of family/health/money require more careful attention and for us a legal marriage contract of sorts would simplify our lives a lot. An alternate name, would be fine as long as our basic rights as a couple of many years standing is respected legally. For us, that’s all we would want, and need from a marriage/union (I wouldn’t care what its called, only what it grants).

      The question I’ve had about this debate on the “yes” side is: do they actually want marriage, or do they want the divisive wedge and distraction the debate creates? It seems to me that this issue has some simple answers if everyone showed some mutual respect and understanding and broke it down to facts alone, but the political endorphin rush is just so sweet and juicy. I’ll bet though that if no-fault divorce ended, the demand for marriage equality would quiet down.

      • REPLY TO PAUL’S 5 OCT, 5:24PM COMMENT:

        The point there is that the Country’s taxation/Social Security system is a maze run by orcs.Instead of a standard basic maintenance payment for everyone, rich or poor, 16 yrs and over, we’ve got social engineering.

  3. Clever ?

    Surely it’s not that hard to figure out that feeling comfortable is the antithesis of being at peace with yourself, that the two states are, in fact, diametrically opposed.

  4. Message to Her Bossness:
    Dear Dee, I realize my writing is getting more USA-topic every day. I cain’t hep it.

    But here is Section of 118 of the Australian Constitution:

      “Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

    Not that states rights matter when every (?) state premier is happy to abdicate to the feds….

    • Mal, the dictionary is only a record of how people have used particular words. I agree that the definition you quoted is the way we had been using the word “marriage” until recently. It would differ in polygamous society, and now it is differing in M’assachusetts.

      Going on the theory that anyone can make up a definition of marriage, here’s mine: “Marriage is a state of heaven on earth attainable when two people who adore each other, and are in a sexual mateship, declare permanent loyalty “come what may.”

  5. I removed Mo Brooks from the photo, so now it is a picture of “the little boys,” the upstarts. (Mo has been in Congress for a long time. Did he sign up as a co-sponsor of Tulsi Gabbard’s Stop Arming the Terrorists Act? I don’t think so.)

    The youngest of us “little boys” is Bryan Peeples (age 37). I give him top score for sincere religious involvement in the campaign. James Beretta, MD, is Italian and “therefore [he says] knows a lot about constructing a bridge.” It would help Congress if we had someone there who knows how things get made.

  6. Have been researching Rene Girard scape goat theory-found this interesting particularly in regard to findings of Royal Commissions about to be made public
    http://www.australiangirardseminar.org/?page_id=574

    also re same sex marriage etc was told with some authority that it is just a mechanism to enable changes to the constitution-Bill of Rights etc–guess dual citizenship debacle is the same

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