On the second weekend of June, people in Louisville, Kentucky, laid to rest two leading citizens.
One of them, of course, was Muhammad Ali, buried on June 10.
The other, my cousin Boyce F. Martin Jr., was buried the next day. Recently retired, he was for many years chief judge of the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Ohio, Michigan, and Tennessee. He died of brain cancer on June 1.
He wrote hundreds of important opinions on topics such as the death penalty, abortion, and the Affordable Care Act.
And affirmative action, as last week’s controversial U.S. Supreme Court decision in Fisher v. University of Texas reminded me. The top court allowed the university to consider race as one factor in admissions decisions when it can show “the educational benefits that flow from student body diversity.” As a basis for its decision, the court cited its 2003 opinion written by Justice Sandra Day O’Connor in Grutter v. Bollinger, which, in a 5-4 decision, opened the door to some consideration of race.
That decision upheld a bitterly divided Sixth Circuit and an opinion written by Judge Martin holding that universities could seek a critical mass of minority students to achieve racial, ethnic and intellectual diversity in their student bodies.
University officials who welcomed the recent Fisher decision should appreciate the critical role Judge Martin played in finding a constitutional path to use affirmative action to achieve diversity.
Another case, Maker’s Mark v. Diageo North America, though not as important as Grutter, showed Judge Martin’s sense of humor and his ability to clearly explain a complicated legal controversy.
The bourbon distiller, Maker’s Mark, sought to prevent Diageo and Jose Cuervo tequila, from coating Cuervo bottles with dripping red wax similar to Maker’s wax trademark. Diageo argued that there was no likelihood of confusion between bottles of tequila and bourbon, so that it should be allowed to use dripping red wax on Cuervo tequila. In a decision that explained the complexities of trademark law, Judge Martin also set out a history of Kentucky bourbon, beginning with a quote from the late Supreme Court Justice Hugo Black: “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.”
He continued, “All bourbon is whiskey, but not all whiskey is bourbon. Whiskey, like other distilled spirits, begins as a fermentable mash, composed of water and grains or other fermentable ingredients. The mash is heated and then cooled, yeast is introduced to ferment the sugars in the mash, and the yeast turns the sugars into alcohol and carbon dioxide.”
Ruling in favor of Maker’s Mark, Judge Martin explained, “Distillers compete intensely on flavor, but also through branding and marketing; the history of bourbon, in particular, illustrates why strong branding and differentiation is important in the distilled spirits market.”
The judge’s family and mine share the Martin name and another one, Grier. There are lots of Grier Martins in both families.
Judge Martin’s grandfather, named Robert Calvin Grier Martin, and my grandfather were children of a poor Georgia Associate Reformed Presbyterian minister and his wife, the daughter of Erskine College President Robert Calvin Grier.
Judge Martin’s brother and his son carry the Grier Martin name in Kentucky, as do my son and I (who are named David Grier Martin) here in North Carolina, both of us proud of our connections to Judge Martin and our Kentucky cousins.
D.G. Martin hosts “North Carolina Bookwatch,” which airs Sundays at noon and Thursdays at 5 p.m. on UNC-TV.