Posted on 03/02/2015 6:33:27 AM PST by wagglebee
February 27, 2015 (ThePublicDiscourse.com) -- No, of course Old Abe never said a lick about same-sex marriage. The idea would have been unheard of in the 1850s—or even the 1950s. The issue of Lincoln’s day was slavery—in particular, the extension of that peculiar institution into federal territories and even into free states. But in connection with the slavery issue, Lincoln had plenty to say about the use and abuse of judicial authority to propagate social policy and about the dangers of judges usurping legislative authority. The man whose birth we honored two weeks ago thus spoke, indirectly, to one of the central controversies of our own era, and to a case pending before the Supreme Court right now.
Lincoln’s specific concern was the expansion of slavery into federal territories, mandated by the Supreme Court’s horrendous decision in Dred Scott v. Sandford, in 1857. Lincoln warned of the prospect of a “second Dred Scott” decision following on the heels of the first, mandating the extension of slavery into (formerly) “free” states where the institution of slavery was banned, like Illinois. “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free,” Lincoln intoned, in the famous House Divided speech launching his (unsuccessful) 1858 campaign for Senate, “and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.”
The logic of the Dred Scott case, Lincoln argued, would seem to imply that no state could deny recognition to the property rights of slaveholders coming from another state. Dred Scott had held that a right to own slave property, conferred by the laws of a slave state, bound the federal government, in administering federal territories that had not yet become states. Federal law could not ban slavery in the territories, for that would unfairly and unconstitutionally deprive slave-owners of a benefit they had possessed under state law, and thus deny them “due process of law.”
However convoluted and unpersuasive the Court’s reasoning, Lincoln recognized the implications of its logic: if the federal government had to recognize slavery as a result of some states’ laws, how could a free state (like Illinois) deny recognition to slave status conferred by a slave state’s laws (like Missouri’s)?
A House Divided
Lincoln warned that politicians and judges, like builders working according to a common plan, were preparing the framework to make slavery the uniform national rule: “Put that and that together, and we have a nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery within its limits.” And once that had happened, a state could scarcely deny to all citizens of a state the same “constitutional right” to the institution of slavery that it had to recognize to newcomers or travelers from slave states. A case presenting exactly these issues was kicking around in the New York courts, and seemed at the time destined to make it to the US Supreme Court, presenting the perfect opportunity for such a second Dred Scott.
“A house divided against itself cannot stand,” Lincoln said, quoting Jesus. Lincoln did not expect the house to fall, but he did expect that “it will cease to be divided. It will become all one thing, or all the other.” The only way to prevent slavery from becoming the national rule was to resist the decision of the Supreme Court and to seek to prevent its extension—to “meet and overthrow the power of” the “political dynasty” that was seeking to extend slavery to the entire nation.
Lincoln lost that Senate campaign to the incumbent Stephen Douglas, but then beat Douglas in a rematch two years later, this time for the presidency. The rest, as they say, is history: southern states revolted against what they considered a revolting, lawlessly antislavery president; Lincoln considered it his constitutional duty to maintain the Union, faithfully execute the laws, and put down the rebellion; and during a four-year bloody Civil War that tragically claimed 620,000 lives—more than all of America’s other wars combined—Lincoln found it necessary to proclaim the emancipation of slaves held in the states in rebellion. The Thirteenth Amendment, abolishing slavery throughout the nation, was proposed by Congress 150 years ago this month, and Lee surrendered to Grant 150 years ago this April. Barely a week after that, Lincoln was killed by an assassin’s bullet—having seen, but never entered, the promised land of a nation free of slavery.
Parallels between Dred Scott and Windsor
So what does all this have to do with same-sex marriage? A lot. Two years ago, in the contrived test case of Windsor v. United States, a bare majority of Supreme Court justices held that a legal status conferred by state law had to be recognized within the federal sphere. The court held that to deny such a status, as federal law did, violated the Due Process Clause of the Fifth Amendment.
In legal form and substance, the decisions in Windsor and Dred Scott are surprisingly parallel. Windsor involved a same-sex marriage that was recognized by the state of New York but not recognized by the federal government due to the Defense of Marriage Act (DOMA). The Court held that DOMA denied “due process of law” because it withheld federal recognition to a state-law legal status. That is exactly the same thing the Court did in Dred Scott. Instead of marriage, Dred Scott involved the status of slavery, which was recognized by the state of Missouri, but not by federal law in federal territory. Scott’s master, a captain in the army, had taken Scott to Fort Snelling, in the free federal territory of present-day Minnesota. The federal Missouri Compromise of 1820 banned the status of slavery in federal territory north of a designated line. Dred Scott held that the Missouri Compromise denied “due process of law” because it withheld federal recognition to a state-law legal status. That is just what Windsor did with respect to DOMA.
In both Dred Scott and Windsor, the Court’s legal analysis was transparently result-oriented: the justices wanted a particular result, and manipulated the law to reach the outcome they thought preferable as a social-policy matter. In both cases, the majority’s “reasoning” wanders aimlessly before finally settling into the same oft-discredited judicial invention of “substantive due process”—the idea that it is simply morally wrong, or mean, for a democracy to deny a legal right or status conferred under the law of a different jurisdiction. In both cases, the majority opinions were subject to devastating dissents, and they produced greatly divided public reaction. It is hard to avoid the conclusion that Dred Scott and Windsor are two peas from the same judicial-activist pod.
A Second Windsor?
Lincoln warned that there could be a “Second Dred Scott” making slavery national. “Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome or unwelcome, such decision is probably coming.”
Could there be a “Second Windsor” making same-sex marriage national?
Quite possibly yes. A case is now pending before the Supreme Court asking whether four states—Ohio, Michigan, Kentucky, and Tennessee—acted unconstitutionally by not recognizing the status of same-sex marriages under their laws. Some of the plaintiffs are same-sex partners who were married under the laws of other states before moving to a state not recognizing such status. Other plaintiffs seek simply to be married in their home states, the laws of which limit marriage to opposite-sex couples.
Just as with Dred Scott and slavery, the logic of Windsor does not quite require extension to invalidate the laws of every state that denies same-sex marriage status. But an argument will be made that it does. The reasoning of Windsor is that it was gratuitously and indefensibly mean, and therefore unconstitutional, for the federal government to deny recognition to a same-sex marriage recognized under state law. Just as Lincoln asked with respect to Dred Scott, how likely is it the Court will say that a state can then deny to other state’s citizens, or even to its own, the status of same-sex marriage? “Put that and that together,” as Lincoln said, “and we have another nice little niche” for the next Supreme Court decision.
Same-sex marriage is obviously an entirely different social institution than slavery. Reasonable and honorable people today disagree about whether the traditional view of marriage as a conjugal and intrinsically male-female union should be abandoned for an understanding of marriage as embracing any sexual-romantic bond into which two (or more) people might enter. Nobody today disagrees about slavery.
But that is not the point. The point is that, in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions, the two situations appear remarkably similar.
If recent lower court opinions on marriage are any guide, the judicial winds may be blowing on the marriage question in the same direction Lincoln seemed to perceive them blowing on the question of extending slavery into northern states by judicial decree. (Lincoln’s prediction probably would have proved right had he not been elected president.) As with slavery in the 1850s, so too with same-sex marriage in 2015: the house very likely will soon cease to be divided. I wouldn’t want to say it’s inevitable, but it is certainly possible that a Second Windsor is coming.
Will the Republican Party produce another Lincoln to stand against it?
Reprinted with permission from The Witherspoon Institute.
Excellent analysis!
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There have been a number of Supreme Court Decisions and even Amendments to the Constitution that are regrettable and should be addressed. Dred Scott, The Volstead Act(repealed), The wording of the 14th Amendment (which has been re-interpreted to allow anchor babies), Plessy vs Ferguson, and, of course, the evil, horrendous, Roe vs Wade. It is possible to repeal or amend these poor choices, but we need righteous, wise, and decent politicians to make it happen.
(Sigh. I know...)
Until our side starts using the correct terms like homosexuals instead of gay and our side gets some guts to speak up about real marriage is then the libs{liberals and liberal-tarians} will just keep stripping away at marriage and family.
Add Glenshaw Glass — redefined the word income which constitutionally was a derivation not wages
Yes Indeed.
They even count the meager tips given to the donut waitress as “income”!
Very well stated!
I for one am absolutely certain that the GOP DOES NOT have the desire or ability to fight this battle. There are a handful of individual Republicans who do, but I believe that this will be the issue that destroys the GOP much the same way that slavery destroyed the Whigs.
Yes indeed.
Whoever controls the language controls the culture.
We should reclaim our words and our symbols, from “gay” meaning “carefree”, to the rainbow to the color green!
“I for one am absolutely certain that the GOP DOES NOT have the desire or ability to fight this battle. There are a handful of individual Republicans who do”
Last week, Rush said that based on the GOP actions/non-action since November, we would have been better off with Reid. Now there is no opposition party.
If Rush were to publicly state that he would not only not support non-conservative candidates, but actively campaign AGAINST them, even if they're in the GOP, it would go a long way.
Great piece. Thanks.
Good point, and quite accurate.
I, as a non-lawyer, understood this implication of a single same-sex union before it ever happened. It’s really quite simple. The Constitution states that if a contract is legal in one state, it must be respected in all states. So, when Kerry, with a law degree, said that wasn’t the case, I knew that he wasn’t just mistaken, but outright lying.
I grew up near Kerry, and we are roughly the same age. He has never told the truth in his life.
The radicals and communists back in the 60’s took a happy, carefree word and attached it to their agenda and now we have some on our side who use their terminology.
The left always play the name game.
Amnesty is called the dream act.
Homosexuals are now called gay.
illegals are now undocumented.
Even Islamic state is not Islamic according to them.
The list is endless and like you said if we do not call it for what it really is then how are we supposed to fight it.
Our side has to stop repeating their talking points and stand on our issues and get the word out what real marriage and families are.
Last election social issues were not hardly mentioned or stood up for and look what we got.
The election before that the same.
Instead we get the same failing talking points from the Camber of commerce etc who would rather mention lower taxes and foreign policy. I don’t have a problem with that, but we are letting the left dictate the social agenda while libs and yes I mean liberals and liberal-tarians advance their left wing agenda.
My wife worked as a nanny in Beacon Hill and was around the corner from the Kerrys’.
She said he was so arrogant that he had a fire hydrant moved away from his house and outside next door because he wanted a parking spot right outside his house door.
She met him once and thought he was a sleazebag then and guess what she has no changed her mind at all.
He is a liar who lives in his own word who thinks very highly of himself.
Yess. tell it like it is!
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