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Birney's contribution to today's ruling on same sex marriage came when he represented the Cherokee Indians who were being driven off their lands in Georgia and Alabama by President Andrew Jackson.

BIRNEY RISES AT LAST: Bay City Pioneer's Words Undergird Historic Ruling

Same Sex Marriage Bolstered by Due Process and Equal Protection Clauses

June 26, 2015       Leave a Comment
By: Dave Rogers

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The Fourteenth Amendment's Due Process and Equal Protection clauses in the United States Constitution are key to the Supreme Court's historic ruling on same sex marriage issued Friday.

And Bay City pioneer James G. Birney's political actions and philosophical thought reflected in his writings and speeches undergird the Fourteenth Amendment, according to prominent legal scholars.

"Apostles of Equality: The Birneys, the Republicans and the Civil War," my book published in 2011 by Michigan State University Press, documents the link of Birney to the Fourteenth Amendment.

The book cites research by historians and legal scholars Garrett Epps and Gerard N. Magliocca, who identified Birney's defense of Native American Indians as the beginning of the abolitionist movement that led to the Fourteenth Amendment.

Birney's contribution to today's ruling on same sex marriage came when he represented the Cherokee Indians who were being driven off their lands in Georgia and Alabama by President Andrew Jackson.

After some initial hesitation, Birney had the courage to challenge Jackson and his systematic disenfranchisement of the Cherokee. From 1826 until 1833 Birney was legal counsel to the tribe, practically self-destructing a promising political career in Alabama where he was assistant attorney general and mayor of Huntsville.

Jackson's policies led to the infamous "Trail of Tears" in which thousands of Indians were driven on foot to Indian Country -- now Oklahoma -- and their lands, homes and gold mines turned over to white settlers.

By that time, 1838, Birney had moved on to New York and Cincinnati where he published an abolitionist newspaper, The Philanthropist. After a futile run for President in 1840 on the Liberty Party ticket, a distraught Birney moved to Lower Saginaw and, with James Fraser, helped put economic life the languishing village that became Bay City in 1859.

By the time the name "Bay City" was approved by the Legislature, Birney was dead. He succumbed in 1857 in New Jersey, having suffered strokes after falling from a horse while riding on his property near today's McLaren Bay Medical Center.

"The removal of the Cherokee Tribe was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the anti-discrimination principle," wrote Magliocca, professor at the Indiana University School of Law, adding:

"When these same (abolitionist) leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. Georgia as relevant guideposts for interpreting the new constitutional text."

That ruling, in which the court held that native lands were protected, was ignored by Jackson. "John Marshall (Chief Justice) has made his ruling, now let him enforce it," Jackson reportedly scoffed.

Epps, a professor at the University of Baltimore Law School, wrote: "Viewing the Fourteenth Amendment in its totality, it is not too much to say that without it, the United States would not be today what we call a democracy."

In today's ruling, five justices led by Anthony Kennedy held that the right to marry is a fundamental right inherent in the liberty of the person of which they may not be deprived under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

"Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged," the justices wrote.

The case stemmed from separate lawsuits in Michigan, Ohio, Kentucky and Tennessee whose laws define marriage as a union between one man and one woman. The cases from those states were consolidated under the name "Obergefell, et al v. Hodges, director, Ohio Department of Health, et al."

Due Process and Equal Protection were concepts that had been espoused by Birney based on the Declaration of Independence and the general concepts of the preamble to the Constitution.

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Dave Rogers

Dave Rogers is a former editorial writer for the Bay City Times and a widely read,
respected journalist/writer in and around Bay City.
(Contact Dave Via Email at carraroe@aol.com)

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