Even in law, no decision is completely final


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Dr. Malcolm Cross
Dr. Malcolm Cross


Whatever one thinks of same sex marriage, one should be concerned with how it became the law of the land.  It was created by an unelected Supreme Court, which short-circuited the democratic process.  This inspires not only more effort to change the decision, but more determination to disobey the decision while it remains officially in effect.

As a general rule, the greater the role of the public in making the law, the greater the respect it will accord the law.  The laws the people will most respect are those for which they can directly vote, such as those laws, adopted by referendum election, in which the public voted to make Erath County wet in 2008 and to adopt Prop 1 earlier this year.  In a government “of the people, by the people, for the people,” this is only natural.

Also laws adopted by democratically elected legislatures usually command widespread public acceptance,  at least as long as the lawmakers seem to be respecting public opinion in the making of the law.  But if lawmakers ignore public opinion, they risk public rejection.  A notable example in Stephenville was the ordinance passed in 2004 authorizing the city to build the Proctor Pipeline.  In 2000 the voters had overwhelmingly rejected a proposal to do so and since 2004 many voters have continued to believe the City Council betrayed them, and even made the matter a campaign issue in 2014, opposing the election of those who had supported the pipeline.  Those running for city council in 2014 who supported the legislation of 2004 both lost.

Most problematic are Supreme Court decisions which, by interpreting the law, have the force of law.  Because the Supreme Court is not directly elected by the public, when it makes truly controversial decisions—establishing slavery as a constitutionally protected property right, declaring racial segregation unconstitutional, or finding within the Constitution the basis for recognizing rights to abortion or same sex marriage—large segments of the public frequently see no obligation to recognize or obey its rulings.  This may help explain why many state and local officials in Texas and other socially conservative southern states believe it is okay to refuse to issue marriage licenses to same sex couples even if they have taken an oath to uphold the federal and state constitutions. 

Of course, the Supreme Court’s critics have a perfect right to work within the system to change its decisions, whether by supporting constitutional amendments, or electing a president and senators who will appoint and confirm new Supreme Court members, or relitigating issues once thought to have been settled.  The 13th Amendment abolishing slavery reversed the Dred Scott case recognizing the right to own slaves.  The Supreme Court justices appointed by President Franklin Roosevelt and confirmed by his supporters in the Senate reversed earlier decisions declaring the New Deal unconstitutional.  The Supreme Court’s decision to declare racial segregation unconstitutional was a reversal of a previous decision to accept segregation as long as facilities if separate, were nonetheless equal for all concerned. 

So nobody should take the permanence of the Supreme Court’s ruling on same sex marriage for granted.  Those who oppose it may choose to work through a variety of channels to eliminate it.  Those who support it must be prepared to keep fighting.  Each side must do its best to convince the public of the rightness of its position and thereby enhance its position’s strength and popularity.  For better or worse, no decision should ever be considered completely final.

 Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987.  His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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