August 1, 2015 Letters
Letters
Magna Carta and The Rule of Law
After returning from the London Sessions of the ABA in June, which commemorated and celebrated the 800th anniversary of the sealing of Magna Carta, I have become a bit confused about what nation that we had returned to.
I spent a week of studying Magna Carta in London and listening to internationally renowned speakers hail the virtues of the rule of law and the need to incorporate the rule of law into the value systems of struggling nations and nations with intolerant and undemocratic governments and judicial systems. I now hear, in my own nation, statements from those who have held high office and who desire to hold even higher office that our nation is being subjected to the “false god of judicial supremacy.”
Indeed, while our system of the rule of law is being heralded internationally as a model, “leaders” in our own nation are suggesting, maybe even urging, that the rule of law be trampled upon and ignored in the United States. There are some who are stating that rulings of the highest court in the land need not be honored and may be defied — that the rule of law may be ignored.
The rule of law does not guarantee a happy result to all. It does guarantee a fair decision-making process with judicial norms applied to each case. When proposals from those running for high national office are made to make the U.S. Supreme Court (and, I suppose, the entire federal judiciary) subject to popular elections, votes on retention periodically, or other political “remedies,” we are in danger. We are in danger of becoming a nation such as those who need the rule of law now to allow minorities to be represented in government, to express the views of those not in power, and to allow entry into an international community of nations that agree to a world community of civilized norms. In sum, we are in danger of losing our status as a nation which enjoys a system others strive to have.
I find it amazingly peculiar that some seeking high office under a platform of adhering to traditional values would ignore the fundamental principles deriving from Marbury v. Madison (1803), and the fact that our federal judiciary has been in place with lifetime appointment and protection from popular political winds for about 200 years. Those are fairly traditional principles of governance, in my humble opinion.
Frankly, I am in favor of all judicial positions being filled by appointment. I think that judicial elections are degrading to the system and those who put black robes on to work each day. That is another story, though.
But, if we as a people fall into retrograde and seriously pursue the proposals being made to decimate the independence of those holding judicial office, I believe that we will not be a nation that is looked upon with awe as we maintain the rule of law in the face of a diverse and diversifying citizenry. We will be something far less and something that will be continue to be far less and less. That would be most sad for us and our posterity.
Lonnie Groo
t
Lake Mary
Death Penalty
In the spirit of sister politics and joint legislative motivation, Nebraska has initiated progressive legislation in an area prominent on Florida’s immediate horizon. That vital concern is the “demise” of the death penalty.
The Nebraska Legislature has recognized the futility of continuing to ignore or rationalize realities weighing against its continued use as a functional sanction for killing. Likewise, with regard to the diminishing interest of drug companies to continue to supply the questionable drugs used for executions.
A major accommodation by the Nebraska Legislature in reaching this decision was recognition of the continued execution of citizens shown to be innocent. (Florida leads the country in the number of exonerations of people on death row.)
The Republican leadership also noted that the death penalty was unfair to families of victims because of the uncertainty of implementing a sentence of death and that executions had “essentially ground to a halt.”
They also acknowledged that the death penalty was inconsistently administered (this consistent with the overwhelming use of the death penalty in Florida against those who are poor or of color).
Additionally, the Florida Supreme Court is one vote from having a majority expressing concerns about Florida’s death penalty law being unconstitutional under the holding of Ring v. Arizona, 122 S. Ct. 2428 (2002). (See Peterson v. State, 94 So.3d 514, (Fla. 2012)). ( Ring is the U.S. Supreme Court opinion essentially holding that taking away a jury’s authority to make irrevocable decisions necessary for a judge to consider imposing a death sentence violates the U.S. Constitution.)
The Nebraska Republican Legislature recognized that “conservatives nationwide” have spoken out against the death penalty citing, among others, religious and fiscal concerns.
Additionally, political philosophies between Mr. Scott’s party and Florida’s Legislature overlap with Nebraska’s and other political factions advocating abolition of the death penalty for sound reasons, and equally opposed to its continued use.
Nebraska’s Legislature has been convinced that concerns for the continued use of the “ultimate sanction” argue persuasively for its abolition especially when considering the enormous disparity between the costs to a state (and its citizens) in enforcing the death penalty vs. costs in cases of murder where it is not.
The Nebraska Legislature has acknowledged that it is antithetical to Republicans’ adherence to pro-life policies and, as held by the U.S. Supreme Court, that the continued use or abolishment of the death penalty is subject to developing and changing attitudes across the country. One Republican legislator even noted that the death penalty is “simply not good government.”
Nebraska’s decision has clearly determined that it will adhere to its fundamental obligation to abide its constitutional mandate to its citizens. Nebraska’s decision is a well-reasoned response to that obligation and mandate and, from a political and legislative compatriot, one which Florida is and should be compelled to follow.
Bill Salmon
Gainesville
Technology
I read with interest the sub-headline on the July 15 News : “Technology can free us from menial tasks so that we can focus on solving interesting and complex legal problems.”
I had written about my law firm that I had a “machine to do repetitive tasks, so that the people working here would not be swamped with drudgery but could use their minds to make this business work.” Unfortunately, the News declined to publish my article, but The Miami Review did — on October 7, 1987! (That’s not a typo.)
I suppose it is interesting when the president of The Florida Bar says it in 2015. Unfortunately, it is 30 years out of date: Those who have not already adopted technology are dinosaurs, even if they don’t know it. [I proposed a re-do a quarter of a century later. The News again declined to publish it; the Georgia Bar News eventually did (December 2012). Look it up.]
How out of date is that? Moore’s law says technological power doubles every two years. If that 1987 article were $10, it would now be worth $1 with 32,768 zeros after it. Or, in reverse, an observation 30 years late about computers is worth. . . well, you get the idea.
John Longino
Waleska, GA
Obergefell v. Hodges
The Supreme Court’s 5-4 decision, decided June 25, 2015, in Obergefell v. Hodges, interprets the 14th Amendment as the love amendment to the U.S. Constitution by legalizing all same-sex marriages in the U.S. on the basis of an unjustified and strained interpretation of the 14th Amendment concept of equal protection. The majority opinion, written by Justice Anthony Kennedy, justifies same-sex marriage as a private couple’s “love, fidelity, devotion, sacrifice and family.” The legal rationale is thin at best.
The decision directly impacts 14 states, because 20 states have been forced by federal judicial edicts of lower courts to recognize same-sex marriages, and many of the remaining 16 states, such as Massachusetts in 2003, were required to recognize same-sex marriage by a state court’s decision.
The small percentage of people in the U.S. to whom this decision applies will not change the body politic. They will continue doing whatever they have been doing with their sex lives. The only difference is that they will now have the imprimatur of the state legalizing their relationship.
The legal problem with the Obergefell is that it stands on the same plane as the infamous decisions of the U.S. Supreme Court — Dred Scott (instigated the Civil War), Plessy v. Ferguson (institutionalized segregation with the proposition of separate but equal), and the still contentious Roe v. Wade (found a right of privacy in the First Amendment, thereby legalizing abortion in the first six months of a pregnancy). After 42 years the Roe v. Wade decision is still not accepted by a majority of Americans and most of the religions in the U.S. Similarly, for decades to come, it is likely that same-sex marriage will be a societal issue.
This Supreme Court decision ignores the entire history of humankind, the 10th Amendment, the constitutional history of state sovereignty, and, specifically, the rights of states and the colonies before them, to regulate matters pertaining to births, deaths, marriages, and divorces. It also ignores modern state constitutions and state statutory laws, as well as virtually all of the value systems of religions in the U.S.
The Obergefell decision, based on the principle that every person should have the liberty to decide who they want to love and marry, is fraught with quicksand. Based on the rationale of the Supreme Court majority, we may now have to consider legalizing polygamy, pedophelia, and incest, and abrogating statutory rape.
The debate over same-sex marriage has been filled with lies and distortions by its proponents. They cast the slur that because a person believes in what is described as “traditional” marriage, such a person is homophobic. Rather, those who castigate heterosexuals with that pejorative term are heterophobic. Most people have no concern as to what sexual practices a person engages in the privacy of their own bedrooms. Most do not discriminate against persons who are homosexual in the areas of employment, living quarters, or in general social situations. A majority of heterosexuals simply believe that procreation is the fundamental bond of human existence and that a married couple consisting of a man and a woman is the basic building block of civilization. To the extent that such a unitary family ceases to exist, there are many who believe society will be diminished.
The U.S. Supreme Court has done no favor for same-sex couples by legitimatizing same-sex marriage by judicial edict, instead of allowing the political process to determine the issue. The Supreme Court has also opened a Pandora’s box of problems relating to other relationships based on love.
Richard N. Friedman
Miami
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Russell Lee Johnson, in the July 15 News, takes exception to Chief Justice Roberts’ statement in dissenting in Obergefell that the “right” to homosexual and lesbian marriages “has no basis in the Constitution.” Part of Johnson’s rationale is: “There is nothing in the Constitution defining marriage as a union between one man and one woman.”
Johnson is correct. In fact, there is no definition of marriage in the Constitution at all. No right to marriage is expressly given in the Constitution. Therefore, there is, in fact, no “right” to homosexual and lesbian marriages in the Constitution, just as C.J. Roberts stated.
What Johnson seems to argue, however, is that if a state grants any right to marriage, then it must be made available to homosexuals and lesbians just as much as to heterosexuals to satisfy the equal protection guarantee of the 14th Amendment.
But most states (until the recent spate of court decisions) did, in fact, define “marriage as a union between one man and one woman,” the very limitation Johnson found missing in the Constitution.
So, in fact, homosexuals and lesbians did have the same right to marriage as everyone else — any homosexual man could marry a woman and any lesbian woman a man. What homosexuals and lesbians did not have a right to (prior to Obergefell, et al.) was to require states to “redefine” what “marriage” was to be, apparently, “the right to cohabitate with anyone you wish under color of law, complete with all rights heretofore only granted to male/female unions.”
Well, it is now too late to argue the point, given Justice Kennedy’s opinion in Obergefell. Nonetheless, Johnson’s umbrage with C.J. Roberts’ point is unfounded. Had the Chief Justice’s position prevailed, equal protection would not have been denied.
Thomas F. Harkins Jr.
Ft. Worth, Texas
