The Supremes and the Baby Boomers

Some recent reactive changes in perception of heritage and rulings by the Supremes have recently left me quite dismayed. Not the legendary singing group but the men and women that don the black robes as Justices of the United State Supreme Court. Five of the nine are Baby Boomers and Republican presidents nominated five of the now sitting Justices. Some of the truths in my life were no longer deemed truths and for the past several weeks I have tried to make sense of them and wondered what would I say in this column.

A couple of years ago in United States v Windsor, the 1996 Defense of Marriage Act was struck down by the United States Supreme Court, as unconstitutional based on the Due Process clause of the Fifth Amendment. Such Clause is highlighted within the Amendment below and reads;

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Several States had initiated their own rightful laws defining acknowledged marriage in their states.

I attended a discussion on United States Supreme Court decisions while recently attending the annual meeting of the Alabama State Bar. The panel consisted of the Alabama Solicitor General and a former Alabama Solicitor General. The current Solicitor General was guarded in his remarks due to ongoing issues with which he is involved. They discussed the recent United States Supreme Court, 5-4 opinion regarding State restriction on same sex marriage. In that decision the Court decided under Section 1 of the Fourteenth Amendment that States cannot restrict the rights of same sex couples to marry. Section 1 of the Fourteenth Amendment reads;

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Both panelists seemed to understand the rationale of the Court, never stating their own legal opinion. It is the job of the Alabama Solicitor General to advocate the consistent positions of the State of Alabama in the Alabama Supreme Court, the Federal Courts and the United States Supreme Court and he had argued that very thing.

I must say, I cannot see how even a liberal interpretation equates to the several States from being unable to decide by vote of its legislators or voters what is legally permitted regarding marriage. Now, I believe I had one of the finest Constitutional educations under my law professor, Dr. John Eidsmoe. But while sitting in the meeting I began to think that I am a poor excuse at Constitutional interpretation when I didn’t seem to understand how one derives an overriding fact that defeats marriage, as we have known it for thousands of years.

I will remain guarded with counsel and assistance to same sex couples regarding estate planning so that I can provide reasonable assurance to those couples that assets will be passed as they desire and not necessarily on assumptions that may be otherwise provided for under traditional marriage.

I was out of town when I heard about the murders of the church members in Charleston. I could not imagine the hate that this young man had, and how he thought cowardly murders of these individuals was a good idea. The news outlets showed a picture of him and a Confederate battle flag. He had inappropriately hijacked a symbol of my many ancestral Confederate soldiers and turned it into a symbol of hate. There was a reaction first by those who have awaited an opportunity to remove a misunderstood symbol of my heritage and then a knee jerk reaction by many elected officials and companies to further that misconception. One elected official, that I will not name, suddenly changed their former public image on Confederate heritage; I was astounded.

You see it was under the flag of the United States that slavery spread in this country, and it was men in the North that sold enslaved people to Southerners when the cotton gin made cotton a profitable crop in the South. Until there was sufficient labor in the North, there existed a great deal of slavery there as well. In 1703, New York City had over forty percent of the households holding slaves. Over time, there were both import and export tariffs on Southerners that were often greater than similarly valued imports and exports in the North. Southerners were tired of the way they were treated by their supposed brethren in the North (and often still are with opposed positions by those on Capitol Hill). The South wanted their own nation and they seceded. The North, realizing that significant income would leave with the seceding states and having succeeded in ridding most of the North of slaves, decided that invasion of the South would “preserve the Union”. While in 1855 Lincoln wrote his friend Joshua Speed saying how he disliked slavery, he wrote Horace Greeley in 1862 and said the following,

“I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.”

Slavery only existed under the Flag of the Confederate States of America for four years, not the Confederate battle flag. Lincoln stated he was interested in saving the “Union”, and slavery was a side issue. It was in 1863 that Lincoln sought to include the Abolitionists on his side by issuing the Emancipation Proclamation, which only freed slaves in the seceding states. It was the latter 13th Amendment to the United States Constitution, not ratified until almost eight months after the War Between the States had ended, that abolished slavery in ALL states. Slavery was an issue of the War but it was not the main issue. The men that fought under the Confederate battle flag fought against invaders and not for slavery. I will always be proud of my grandfathers from Alabama, Georgia, Tennessee and Texas, which fought the invaders from the North and the flag under which they fought. I will never support anyone or any group that displays the flag of my ancestors because they think it suggests hate and oppression.

Now the Supreme Court has ruled that Texas does not have to grant the right of the Sons of Confederate Veterans to include the very emblem of their organization on license plates. Maybe Texas should suggest an alternative emblem to the Texas Trophy Hunter’s Association car tag because it may contain an image of a skull of an animal; is that offensive to some? Who will be next, Choose Life or War on Terror?

You see a lot of the policy changes are now coming from Baby Boomers as the progenitors have been stepping aside and leaving this mortal earth. It made me think about my generation that range from their early fifties to almost seventy. In the sixties as they began to come of age some became hippies, some began to try to change the world, and some began to raise families and work just as their parents had. There was a special group from my generation that I am especially proud of; those that served in the military in the Vietnam War era, and then those Baby Boomers that subsequently served in following conflicts or wars and some still serve today. Baby Boomers sought to find their place in society.

But Baby Boomers saw the oppression and deaths of the Jews under Hitler and the inequalities of Americans, and those with ideals of justice sought to right wrongs, and, in some cases to overdo the wrongs that they saw. Enter the Baby Boomer proponents of Roe v Wade, the presentation of participation trophies to everyone on a youth team, political correctness, an idea that multi-generational Southerners are to be ashamed of their families who held slaves (yes it was a horrible institution) or for having been Confederate soldiers and narrow minded for thinking that marriage is one man and one woman. Truly, certain powerful members of my generation have harmed our country. While I think God has no specific stake in the Confederate battle flag per se, He divinely inspired some prominent Confederate generals like Lee and Jackson and used the War as a basis for significant Christian revival in the South and served as a basis for the Bible Belt today. Some truths given us by God are being peeled away by some in my generation, and I am ashamed.

Then I read the July, Robservations, by Robert Tate in The Alabama Gazette. Robert and I have never met nor spoken. I’m guessing he is a little younger than myself, but I believe us both to be Baby Boomers. We are not the children of World War II vets, but we are the children of Korean War veterans. Though I am blessed that both of my parents are still living, Robert recently lost his father. I extend my heartfelt condolences to Robert. What Robert wrote about his Dad in the July issue touched my heart. Two of my close friends, both law school classmates, died within the last few years. I was able to make sense of their lives and deaths by writing about them, to honor them. One I wrote a memorial in the Alabama Lawyer and the other in this very publication.

I know Robert’s words came from his heart and he was able to articulate to his readers one of the truths that I hold dear. Though not to all people, a truth to me is a love of family. Apparently, Robert had a very close relationship with his dad. As I recall from his writings he spoke with his dad almost daily and at length. I imagine Robert’s dad was able to pass along the wisdom of his years. It was obvious that Robert will always cherish that. My dad and I don’t talk that often and when we do it’s generally not at length. If I call my folks and my Dad answers, he usually says very little and then says, “Well here’s your Mama”. That’s just us; I guess we just don’t have a lot to say sometimes. I know I can depend on my dad for whatever I need to talk to him about. I know that one day it will no longer be a two-way conversation.

I don’t know how Robert Tate feels about participation trophies, the Confederate battle flag or same sex marriage, but I know he holds his family dear. From reading Robert’s column, he is what is good about America. He is what is good about the Baby Boomer generation. Those like him are the “keel” of our Nation, and make sense when other things do not.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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