Bench Memos

Dred Scott and Same-Sex Marriage

Ian Millhiser of ThinkProgress is grievously offended that in a post here yesterday, I likened the judicial imposition of same-sex marriage to the Dred Scott decision of 1857.  Millhiser can claim to have mastered just one mode of argument, the ad hominem, so let me enlighten him further.

1.  Like Dred Scott, judicial decisions in favor of same-sex marriage needlessly divide the country on an important moral issue about which people differ, and could otherwise debate their differences in the democratic process, on the pretext that there is a genuine constitutional issue in the cases.

2.  Like Dred Scott, such decisions rest on transparently fallacious legal reasoning with no connection to the Constitution’s words, historic meaning, or underlying principles.

3.  Like Dred Scott, these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” in legislation, known by the laughable oxymoron “substantive due process.”

4.  Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges.  In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise.  In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

5.  Like Dred Scott, same-sex marriage rulings are a harbinger of further depredations, by courts and others, on human freedom in other dimensions.  In 1857, it was the freedom to live in a country where slavery was minimized and at least arguably on its way to extinction.  Today, it is the freedom to live, work, and learn in communities, schools, universities, and other organizations in which people can live the truth about marriage, for religious or other moral reasons.

6.  Like Dred Scott, same-sex marriage rulings, for all the reasons above, amount to a comprehensive threat to republican government, raising the question Lincoln asked in his First Inaugural Address, whether the American people are entitled to govern themselves, or must surrender to government by an “eminent tribunal” of judicial despots.

Here endeth the lesson for Mr. Millhiser.

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