Is the Supreme Court Refusing to Grant Cert in The Same-Sex Marriage Cases Like Dred Scott? (SPOILER: No.)
By Matthew Franck offers many reasons for his comparison. You will be surprised to learn that they are all terrible. Let’s start:
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.
Same-sex marriage will an issue that “will divide the country,” at least in the short term, whether the Court intervenes or not. (A Supreme Court ruling that bans on same-sex marriage are constitutional would also be divisive.) Also note that this proves too much, as one could say the same thing about Brown v. Board. Judicial review is a part of the American democratic process, and the same-sex marriage cases present a genuine constitutional issue.
Like Dred Scott, such decisions rest on transparently fallacious legal reasoning with no connection to the Constitution’s words, historic meaning, or underlying principles.
This is absurd, but we’ll return to this in a second.
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.”
On a minor point, while substantive due process might sound like an oxymoron, it is in fact deeply embedded within American constitutionalism. (Note that McLean, dissenting in Dred Scott, accepted the premise that people had a 5th Amendment right to take their property into the territories; he dissented from the holding that the Missouri Compromise was unconstitutional because “a slave is not property beyond the operation of the local law which makes him such.”) This doesn’t make it inherently correct, but the idea that the concept of “due process of law” guaranteed more than fair procedures was not an opportunistic invention of the slave power (although the application of the principle by the slave power was certainly opportunistic.)
But this argument is misleading in a much more important sense. It’s true that, because of the Windsor holding, the circuit court rulings that state bans on same-sex marriage generally did cite the due process clause. But Windsor was a due process case because of reverse incorporation — that is, the well-settled holding that the equal protection clause of the 14th Amendment binds the federal government through the due process clause of the 5th Amendment just was the due process clause makes most of the Bill of Rights applicable to the states. It is much more accurate, although inconvenient for Franck’s silly Dred Scott analogy, to describe these cases as equal protection cases, not substantive due process cases.
At this point, the absurdity of Franck’s assertion that the circuit court holdings have “no connection to the Constitution’s words” becomes readily apparent. If a state classification that excludes a group of persons who have historically been subject to invidious discrimination has “no connection” to the explicit constitutional requirement that states shall not deny anyone the “equal protection of the laws,” it’s not clear what content the equal protection clause is supposed to have.
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.
This is obviously offensive for the reasons explained in the original Millhiser post. In addition, Franck’s assertion that same-sex marriage is a “false idea” will be useful to those who need an example of what “begging the question” means.
Skipping some pure gibberish about how the decisions will impair the ability of people to do something called “living the truth” about same-sex marriage (that apparently goes beyond merely being free to choose not to marry a same-sex partner and to state your views that same-sex marriages are morally objectionable), we get this:
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.
Republican government, as it exists in the United States, permits legislative enactments to be reviewed by the judiciary. One can fairly argue about whether this is a good thing, but it is not obviously inconsistent with democratic government. And, of course, Franck does not believe this either; after all, he “agree[d] with the dissenters” in NFIB v. Sebelius, making him by his own lights an enemy of democracy and the contemporary equivalent of Roger Taney.
If Franck wants a recent decision that actually uses Dred Scott‘s constitutional reasoning (as opposed to being like Dred Scott because every exercise of judicial review one doesn’t like is like Dred Scott), I have one for him…