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Lunch With Fenner Goes Round Two 12/3/15  12/03/15 8:25:52 AM Printer Friendly VersionPrinter Friendly Version

G. Michael Fenner tackles the landmark Supreme Court ruling on same-sex marriage at his second 2015 “annual” address to the OBA.
2015 Is a Two-fer
Lunch With Fenner Goes Round Two

By Lorraine Boyd
The Daily Record

It was déjà vu all over again: G. Michael Fenner giving his annual “Lunch with Fenner” address to Omaha Bar Association members.
Didn’t he do that already this year? Good memory. He gave the 20th annual address on February 19, 2015. Then he gave his 21st annual address on November 18, 2015.
No, you’re not crazy. The OBA pushed up his February 2016 address because he will be on sabbatical from his position as a professor in the Creighton University School of Law next semester. Mystery solved.
Anyway, back to Fenner’s address. With the unwieldy title of “James Obergefell, Kim Davis, and Pope Francis: Same-sex Marriage, Conscientious Objection, and the Ambush of a Pope,” he launched into his triptych of topics after first giving his obligatory bad news and good news from Creighton.
Bad news (for Creighton): He noted the three retirements of former dean Marianne Culhane, Ralph Whitten, and Eric Pearson, “who won so many outstanding professor awards, they just named it after him! True.”
On a serious note, he shared the news that retired professor Dick Shugrue’s daughter, Kate, recently underwent surgery for a brain tumor. She is a Creighton law school grad.
The good news: “We have a new dean, Paul McGreal, and I think he’s going to be terrific.”
He said this was the hardest talk to reduce down to time, so he gave a quick thank-you to OBA Executive Director Dave Sommers for his help and to former director, Mardee Korinek, who “pressured me to do this 21 years ago.”
Fenner then commenced to address the hottest topics on the legal front.
“On June 26, 2015, the answer came to the much-anticipated question, “How is Justice Kennedy going to vote on same-sex marriage case?’”
The ruling on Obergefell v. Hodges struck down the laws prohibiting same-sex marriage.
Fenner said, for his liberal friends, “I thought their belief that he would vote to strike down the laws was just their natural tendency to wishful thinking. My conservative friends thought that he would vote to strike down laws, but I though that was just their “natural tendency to pessimism,” he said wryly. As an aside, he said, “All I wanted from that line was a smile from Eric Pearson.”
“The 5-4 vote count enabled Chief Justice Roberts to write this in his dissent:
‘Supporters of same-sex marriage have achieved considerable success, persuading their fellow citizens, through the democratic process, to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.’”
Fenner said the Court concluded that due process and equal protection protect a fundamental right to same-sex marriage. They found it in the word liberty.
“Kennedy [in his majority opinion] is saying that ours is a living constitution, and the ambiguities in the Constitution, the word liberty for instance, have to be interpreted by the world and time of which the interpreter is a part. … Marriage shapes an individual’s destiny.
“Kennedy says that laws that treat same-sex couples differently ‘diminish their personhood.’”
Fenner continued, “Dissenters answer, ‘What’s that have to do with constitutional law?’
“Dissenters also say that when the Court had to define an ambiguity in the Constitution … it has looked to history and tradition … and history is in strong opposition.
But if we look solely at history, Fenner said, new groups could invoke rights. For instance, there is a long list of rights that had been denied to women, including rights to hold property, enter into contracts, sue, etc.
“The Constitution is just as silent about women’s rights as it is about gay and lesbian rights.”
“Scalia,” Fenner said, “once famously said ‘the Constitution is dead.’ It means what it meant at the time of the ratification. … Kennedy and the four justices who joined him believe that the Constitution is a living document. ‘The nature of justice is that we may not always see it in our own times.’”
 Fenner referred to the Haiku* that he handed out to the audience members.
“Even Originialists have this problem. How can they tell what the framers would say?”
Fenner asked, “What if Dr. Who loaded all the framers into the Tardis [the Time Lord’s time-travelling space ship)] and brought them forward to today? Would they say that the Constitution was dead – or alive?
“Personally, I see both sides – I’m of two minds. But Seth Meyers is not. On Saturday Night Live’s Weekend Update segment, he said this, referring to the Second Amendment:
"‘This week America’s love affair with guns was a hot topic of debate. And of course, when you talk about guns, you always hear a lot about the Second Amendment. Well, I think, if the Founding Fathers were here today, they’d be super freaked out by cars. Talk to them about all you want about what the Second Amendment means, and they would just yell: ‘Why are all those metal beasts rolling down the thoroughfare?’ You tell them, those are cars. Try to talk to them about the militia and they would just scream, ‘How can you speak about militia when these steel dragons fly through the skies?’ Those are airplanes. And when they wrapped their heads around that, they’d eventually ask, ‘Why are all the slaves out?’”
Fenner said, “Maybe I’m a living constitution person after all, but one who’s not completely comfortable with that position.”
When the laughter died down, he continued, asking why there was not much resistance to the Obergefell ruling.
“There was a lot of trouble after Brown v Board and similar Supreme Court opinions. There was deeply ingrained social and political objection to African-American rights. …  People were enraged. There were lynchings and fire bombings. In Montgomery, Ala., Frank Johnson, wrote a lot of opinions and received mountains of hate mail. Gays and lesbians also suffered this long-standing disadvantage; they too were preached against from the pulpit.”
Why not the same resistance to Obergefell? “My opinion: Because we’ve all known someone who is gay before we knew they were gay. It’s impossible to think less of them. … It seems to me resistance is futile. It means turning our backs on those we have known and loved so long. … There has not been that much resistance.”
He noted the most famous example of resistance: Kim Davis, county clerk of Rowan County, Ky., who refused to follow the new law of land and issued marriage licenses.
If she disagrees with the law, Kim Davis can contentiously object. The court can’t order her to violate her faith, but it can order her to do her job. Then she has three choices. She can:
1) Resign – a Nebraska judge once resigned rather than betray his beliefs;
2) Be jailed for contempt – Martin Luther King Jr. went to jail;
3) Do her job. For example, she can allow the deputy clerk to issue licenses.
She was first jailed, and then chose option three.
Mike Huckabee joined in on the furor, saying Davis being jailed proved it’s a crime in the United States to be a Christian. But it was civil contempt, not criminal.
“Someone asked, ‘How can all those people who call for laws protecting religion at the same time call for allowing the public officials to ignore laws they don’t believe it? What would be the point?’”
“The Bible comes into play here, but it has also been used to justify lots of discrimination,” Fenner said. “Some say God’s law supersedes the court’s law. I say, that’s a very good argument – in Saudi Arabia. But not here.”
“I believe that Pope Francis would agree with me that a just and merciful God would not command that ‘a man who lies with mankind shall surely be put to death,’” said Fenner.
“Earlier this month, in Des Moines, Iowa, Pastor Kevin Swanson put together the National Religious Liberties Conference [joined by a few presidential candidates] and he called for homosexuals to the put to death. He said we must wait for the nation to embrace the one true religion before putting them to death, giving them a chance to repent.
“A neuroscientist said, and I quote, ‘the brain is still the place in the universe with the most unanswered questions.’ Pastor Swanson makes me think that neuroscientist is right.”
Fenner concluded, “As we come to know more gays and lesbians, as we come to know friends, co-workers, family members who are gay and lesbian, when we see their devotion to each other is just as ours, it becomes harder and harder to believe a just and merciful God is going to condemn them to hell, for who they ‘immutably are.’
“But a lack of resistance doesn’t mean a lack of fears, some legitimate. But perhaps I’ve been corrupted with a line from [Paul Simon’s Graceland]:
“‘I have reason to believe that we all will be received in Graceland.’”

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