Maggie Gallagher

Bigotry, David Blankenhorn, and the future of marriage

Maggie Gallagher
By Maggie Gallagher
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July 4, 2012 (thePublicDiscourse.com) - “We’ve been fighting about gay marriage for what, 15-20 years now. Is there any evidence that fighting gay marriage is contributing to a greater appreciation among the broad society of the marital institution? Is there any evidence that the re-institutionalization of marriage is happening as a result of opposing gay marriage? And the best answer I can give to that is ‘no.’” – David Blankenhorn.

With that quote Mark Oppenheimer, the Beliefs columnist of the New York Times, begins his transcript of a new documentary, “David Blankenhorn and the Battle Over Same-Sex Marriage,” which was released on last month along with an op-ed by Blankenhorn in the New York Times entitled “How My View on Gay Marriage Changed.”

Maybe you’ve never heard of David Blankenhorn. But he’s a very significant figure in the larger struggle over our fraying marriage culture.

In the early 1990s, Blankenhorn wrote a book called Fatherless America and launched a think tank (the Institute for American Values) drawing attention to the problem of family fragmentation. He did extraordinary work, bringing together family scholars, policymakers, thinkers, and writers across ideological lines to help form a new consensus that marriage matters.

In 2007, Blankenhorn wrote The Future of Marriage, in which he lays out the evidence that marriage is the union of male and female, oriented toward giving children a father as well as a mother. He agreed to testify on behalf of Prop 8 during Judge Walker’s show trial, and he was one of the few experts who did not run when he learned his testimony might be televised.

David Blankenhorn was also for almost a decade my boss, my mentor, my colleague, and my friend. He remains my friend. I take him seriously and want to consider what he said, why he said it, and why he and I disagree. And also to face honestly what his change of heart says about the struggle for marriage.

It’s funny. I left my job at the Institute for American Values unexpectedly in 2003 because David and I disagreed on same-sex marriage. With the Massachusetts court about to rule, I felt an urgent call to focus attention on what gay marriage will mean for marriage as a social institution. David wasn’t going to try to tell me what to think or say (David is not like that), but at that time he really did not want the Institute for American Values drawn into the gay-marriage fight.

For years, all of us in the marriage movement avoided gay marriage. I did too. I wanted to talk about divorce and unmarried childbearing, and I considered gay marriage just a distraction—an unlikely and remote threat. I was wrong about that. I quit my job at David’s Institute for American Values with a check for $10,000 and a vision that it had now become necessary to defend marriage intellectually, in principle—and from first principles.

Much of what we now consider “traditional” about marriage had been won in intellectual and cultural fights of Catholic thinkers with pagan philosophers a millennium ago. Time to gird intellectual loins to fight again for the truth about the good of marriage.

David took his own time coming to the same conclusion. I vividly remember sitting in the office with David, who had a contract to write a book about marriage, when he looked up at me and said, “I realize if I try to write a book on marriage and I don’t talk about gay marriage, people will laugh at me.”

We tried to elide the debate as long as we could—both of us—when we, like the rest of the American people, were forced to confront the question: What is marriage? Why do we care about it? How much is fighting for it worth? How best do we fight for it?

David thought hard and carefully about both questions in the gay marriage fight: What do we owe gay people? And what is marriage? With great care and thoughtful reflection, he came to a position that almost no one else in the country holds.

Marriage is the union of male and female, the way society tries to give a child the gift of his own mother and father in one family union. Gay marriage is part of the process of deinstitutionalizing marriage, removing it from a tight matrix of social norms designed to get this good for children; it is part of a larger process of reformulating marriage as a product of choice oriented toward the private goods of the people who choose it.

I think he made a very powerful case for that position. It is a position he still holds. In the New York Times op-ed he makes this very clear:

I opposed gay marriage believing that children have the right, insofar as society makes it possible, to know and to be cared for by the two parents who brought them into this world. I didn’t just dream up this notion: the United Nations Convention on the Rights of the Child, which came into force in 1990, guarantees children this right.

Marriage is how society recognizes and protects this right. Marriage is the planet’s only institution whose core purpose is to unite the biological, social and legal components of parenthood into one lasting bond. Marriage says to a child: The man and the woman whose sexual union made you will also be there to love and raise you. In this sense, marriage is a gift that society bestows on its children.

At the level of first principles, gay marriage effaces that gift. No same-sex couple, married or not, can ever under any circumstances combine biological, social and legal parenthood into one bond. For this and other reasons, gay marriage has become a significant contributor to marriage’s continuing deinstitutionalization, by which I mean marriage’s steady transformation in both law and custom from a structured institution with clear public purposes to the state’s licensing of private relationships that are privately defined.

I have written these things in my book and said them in my testimony, and I believe them today. I am not recanting any of it.

Many of us hold this view of marriage. What makes Blankenhorn singular and I suspect lonely in this fight is his view of gay relationships. In his book The Future of Marriage, Blankenhorn also endorses the “equal dignity of homosexual love,” and says in a footnote he disagrees with the Biblical view of sexual morality. He struggled to reconcile what he called a “conflict of goods.”

Institutions, David taught me, arise to address social problems. If a problem is merely individual and personal, individuals solve or don’t solve their personal problem. Nothing is at stake for the larger society so they are left on their own, in freedom, to succeed or fail at solving their problem.

Social institutions arise to address social problems: when the problem is big enough and affects the good of the whole society, individuals aren’t just left on their own to figure out for themselves where the good lies. Social institutions arise and are embedded in a matrix of public norms that serve to direct the minds and the hearts of individuals toward some urgently necessary good.

The problem that marriage as a social institution is designed to address is that sexual unions of male and female create children. Only in and through marriage will these children come to know the care and love of both their parents.

Gay marriage, in David’s view, was an attempt to address an important new social problem: how to demonstrate respect for gay people in our society. In David’s mind, gay marriage represents not a case of good versus evil, but a conflict of goods. He has not stopped believing that marriage is the union of male and female, he has simply lost hope he can help strengthen marriage as a social institution by opposing gay marriage: “I have no stomach for what we often too glibly call ‘culture wars.’ Especially on this issue, I’m more interested in conciliation than in further fighting,” he writes in the New York Times.

It isn’t that David no longer sees a conflict of goods in embracing gay marriage. He simply thinks that the battle is lost, so now he has only one hope—that by trying something new he can make something good for marriage happen:

So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. For example, once we accept gay marriage, might we also agree that marrying before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

Will this strategy work? I don’t know. But I hope to find out.

David Blankenhorn underestimates, of course, how important his nuances are or will be. His New York Times op-ed, along with the documentary interview he gave, will be treated as a recantation and his own voice will be drowned out by people who claim to speak in his name to say things he does not believe. That is part of the process of cultural subordination we are now in, and are now wrestling with how to deal with.

The Prop 8 trial turned out to be a serious trial for David, as Mark Oppenheimer’s interview makes clear:

After his testimony was over, Blankenhorn was attacked in the media, accused of being unqualified, ignorant, and bigoted. Frank Rich of The New York Times wrote one of the most scathing columns. “You can’t blame the Prop 8 advocates for wanting to keep Blankenhorn off camera,” Rich wrote. “Boies demolished him during cross-examination.”

So I expected that Blankenhorn would not want to talk about that episode. But when he and I sat down on May 9, he said that he actually enjoyed testifying in California.

Blankenhorn: “Well, the best time I had was at the trial itself. Because that was when I was actually on the stand and I got to say what I believed.”

And Blankenhorn said he did not feel particularly ruffled under cross-examination by Boies.

Blankenhorn: “He had a high old time saying that I didn’t have a PhD and that I was just some bumpkin who wrote a book …”

Blankenhorn: “I competently made an argument that he was unable to punch many holes in. Although, of course, if you ask him about it, he says he punched a million holes … and if you ask the Prop 8 plaintiffs they’ll say this was worst witness in the history of witnesses and too stupid to walk and chew gum at the same time, and so on. But I felt good about it. It was only after the trial — it’s like living two realities.”

Oppenheimer describes the attacks:

It wasn’t just journalists who went after Blankenhorn. The marriage equality camp includes plenty of famous people, Hollywood stars. …

Blankenhorn: I had an old community organizing buddy who wrote a note to me after the trial and said how does it feel to be America’s most famous bigot? I used to think you were a good person. Now I know you’re a bad person. How does it feel to know that your tombstone will read that you’re just a bigot? My response to him is not repeatable on radio, but I told him what I thought he could do with those thoughts … but it was very painful. Now, you’re asking is there a fear that it’s true? Well, don’t you think any person who is at all self-reflective would have to worry about that? Sure, I think anybody would, and so I think I probably do, too. Sure, wouldn’t anybody if people were saying this about you? … I don’t lose sleep over that because … I’m not saying everything I did was right, but I’m saying that I feel a sense of integrity about the things I’ve done on this issue all along. I feel I’ve tried my best to act with integrity. Does it mean I’ve always done that? No. Does it mean I’ve worried about this? Well, I guess, yeah. Not just the reaction, but is it true? Yes. Because how could you not? How could anybody not?”

“After the trial, something changed in Blankenhorn,” according to Oppenheimer, “He does not entirely know how to describe what happened. Maybe it was some cocktail of the fame, the public abuse, or just getting older. Maybe it’s that he began to fear for his legacy, for how the world would remember him. He definitely saw that gay marriage was happening, and it was likely to spread and wasn’t going away. There was no turning back the clock. Is it too cynical to say that nobody wants to be on the wrong side of history? Maybe that’s not a fair way to put it.”

But David switched sides. Above all, Oppenheimer says, “David Blankenhorn has decided to stop fighting. He is fifty-seven years old, and he says he still ‘has a little gas left in the tank.’ In the years he has left, he wants to forge alliances with all people interested in building stronger families, whether those people are gay or straight.”

David’s out of the gay marriage fight, which was never a major focus for him. He’s hoping that by embracing gay marriage he’ll be allowed by the powers that be to do something about divorce and unmarried childbearing, his core concerns. God bless him and good luck.

The lessons gay marriage advocates will take from David Blankenhorn’s “conversion”? They will learn what they know: stigma and hatred directed at people who disagree with them work.

What lessons should we take? What lessons do I take? The first is that no one can fight alone. To stand up to the wall of hatred directed our way, we need each other. And we need the larger sense of community that faith uniquely provides. The second is that as we fight for the good, we must never respond to hatred with hatred, to exclusion with the desire to exclude.

David Blankenhorn is my friend and I love him. I also respect him. I understand what he just did and why he did it and I wish him well in his personal fight to somehow square the circle, to combine a culture of gay marriage with a renewed culture of marriage. Here’s a bit more from David’s interview:

Sometimes it’s important to stand down a bit from the purity of one’s position in the interest of comity. We need to live together here. Sometimes it’s not being chickenhearted or selling out … You can compromise a bit from the purity of one’s position in the interest of accommodating a broader spectrum of people in the society as kind of full members. You know? You can bend a little bit because we have to live together.

Yes we do.

But here’s what I want to say to David and to you: a comity that is bought by surrendering principle is submission, not comity at all. The truth about something as important as marriage cannot be the price we pay to live with each other.

The challenge of our time—and it is a deep challenge, not an easy one—is to find new ways to combine truth and love. Giving up marriage is too high a price to pay. And it is not the last good we will be asked to surrender, unless we find the courage to stand.

Maggie Gallagher is a co-founder of the National Organization for Marriage and co-author, with John Corvino, of Debating Same-Sex Marriage. This article reprinted with permission from thePublicDiscourse.com.

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Banning reparative therapy for gay minors is ‘a form of child abuse’: former homosexual (Video)

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By Ben Johnson

SPRINGFIELD, IL, February 27, 2015 (LifeSiteNews.com) – Not only would Illinois legislators not be protecting children by enacting a ban on “conversion therapy,” they would be engaging in “a form of child abuse,” according to a man who left the homosexual lifestyle three decades ago.

Stephen Black of the Restored Hope Network told the Illinois Family Institute that reparative therapy helps minors who struggle with unwanted same-sex attraction.

While opponents have said that psychological counseling to reduce sexual attraction violates truth in advertising laws and borders on torture, Black described it as little more than “pastoral care for people who want to come out of homosexuality.”

The Conversion Therapy Prohibition Act (H.B. 217), introduced by Democratic State Rep. Kelly Cassidy, would ban such therapy for minors, subjecting medical professionals to discipline by the licensing or medical review board.

"It would be tragic not to allow someone to have self-determination," Black said. "It's a form of child abuse."

“You've got a teenager...[who] actually believes the Bible. He finds himself same-sex attracted,” Black said. “In the Bible...the loving thing to do is to repent, to turn away from this type of lifestyle.”

“Now, this legislation is going to come in and keep him from getting the help he wants,” Black said.

He added that such legislation undermines the family, which may wish to steer a child away from homosexuality – with its attendant higher risk of STDs, depression, and suicide.

Legislation such as H.B. 217 says that “government knows best,” according to Black, and “conflicts with religious liberties.”

He finds confirmation in an unlikely source – far-Left Democratic Congressman Ted Lieu of California. As a state senator, Lieu introduced the ban on reparative therapy, signed into law by Gov. Jerry Brown. Lieu said at the time, “The attack on parental rights is exactly the whole point of the bill.” Barack Obama endorsed Lieu in his successful race for U.S. Congress in 2014.

Stephen Black says he has benefited from reparative therapy himself. After converting to Christianity, he says he eventually left behind his homosexual attraction.

Today, he's a proud grandpa. And he says other teens should have that same opportunity.

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He knows society is quickly turning its back on traditional moral stands, but he and Restored Hope Network continue to uphold the Biblical standard on all sexual activity outside heterosexual marriage, however unpopular his view.

“It's not politically correct, but it's Biblically correct,” Black said.

The Illinois House rejected a similar ban last April. IFI and Concerned Women for America, among others, have asked citizens to urge elected officials to oppose the bill.  

(Story continues following video.)

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Mark Regnerus

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New research on same-sex households reveals kids do best with mom and dad

Mark Regnerus
By Mark Regnerus

February 27, 2015 (ThePublicDiscourse.com) -- A new study published in the February 2015 issue of the British Journal of Education, Society, and Behavioural Science appears to be the largest yet on the matter of same-sex households and children’s emotional outcomes. It analyzed 512 children of same-sex parents, drawn from a pool of over 207,000 respondents who participated in the (US) National Health Interview Survey (NHIS) at some point between 1997 and 2013.

Results reveal that, on eight out of twelve psychometric measures, the risk of clinical emotional problems, developmental problems, or use of mental health treatment services is nearly double among those with same-sex parents when contrasted with children of opposite-sex parents. The estimate of serious child emotional problems in children with same-sex parents is 17 percent, compared with 7 percent among opposite-sex parents, after adjusting for age, race, gender, and parent’s education and income. Rates of ADHD were higher as well—15.5 compared to 7.1 percent. The same is true for learning disabilities: 14.1 vs. 8 percent.

The study’s author, sociologist Paul Sullins, assessed a variety of different hypotheses about the differences, including comparative residential stability, experience of stigma or bullying, parental emotional problems (6.1 percent among same-sex parents vs. 3.4 percent among opposite-sex ones), and biological attachment. Each of these factors predictably aggravated children’s emotional health, but only the last of these—biological parentage—accounted for nearly all of the variation in emotional problems. While adopted children are at higher risk of emotional problems overall, being adopted did not account for the differences between children in same-sex and opposite-sex households. It’s also worth noting that while being bullied clearly aggravates emotional health, there was no difference in self-reported experience of having been bullied between the children of same-sex and opposite-sex parents.

Vocal critics, soon to emerge, will likely home in on the explanatory mechanism—the fact that two mothers or two fathers can’t possibly both enjoy a biological connection to a child—in suggesting the results of the study reveal nothing of value about same-sex households with children. On the contrary, the study reveals a great deal. Namely, there is no equivalent replacement for the enduring gift to a child that a married biological mother and father offer. It’s no guarantee of success. It’s not always possible. But the odds of emotional struggle at least double without it. Some critics might attribute the emotional health differences to the realities of “adoption by strangers,” but the vast majority of same-sex couples in the NHIS exhibited one parent with a biological relationship with the child.

Even research on “planned” same-sex families—those created using assisted reproductive technology (ART)—reveals the significance of biological ties. Sullins notes such studies

have long recognized that the lack of conjoined biological ties creates unique difficulties and relational stresses. The birth and non-birth mother . . . are subject to competition, rivalry, and jealousy regarding conception and mothering roles that are never faced by conceiving opposite-sex couples, and which, for the children involved, can result in anxiety over their security and identity.

The population-based study pooled over 2,700 same-sex couples, defined as “those persons whose reported spouse or cohabiting partner was of the same sex as themselves.” This is a measure similar to that employed in the US Census, but it has the advantage of clarity about the sexual or romantic nature of the partnership (being sure to exclude those who are simply same-sex roommates). Among these, 582 had children under 18 in the household. A battery of questions was completed by 512 of them.

Lies, Damned Lies, and Statistics

This is not the first time the NHIS data have been used to analyze same-sex households and child health. A manuscript presented at the 2014 annual meeting of the Population Association of America assessed the same data. Curiously, that manuscript overlooked all emotional health outcomes. Instead, the authors inquired only into a solitary, parent-reported measure of their “perception of the child’s overall health,” a physical well-being proxy that varies only modestly across household types. Hence, the authors readily concluded “no differences.”

I’m not surprised.

This juxtaposition provides a window into the state of the social science of same-sex households with children. Null findings are preferred—and arguably sought—by most scholars and journal editors. Indeed, study results seem to vary by author, not by dataset. It is largely a different approach to the presentation of data that distinguishes those population-based studies hailed by many as proof of “no differences” from those studies denounced by the same people as “junk science.”

In fact, population-based surveys of same-sex households with children all tend to reveal the same thing, regardless of the data source. It’s a testimony to the virtues of random sampling and the vices of relying on nonrandom samples, which Sullins argues—in another published study—fosters “a strong bias resulting in false positive outcomes . . . in recruited samples of same-sex parents.” He’s right. Published research employing the New Family Structures Study (NFSS), the ECLS (Early Childhood Longitudinal Study), the US Census(ACS), the Canadian Census, and now the NHIS all reveal a comparable basic narrative, namely, that children who grow up with a married mother and father fare best at face value.

The real disagreement is seldom over what the data reveal. It’s how scholars present and interpret the data that differs profoundly. You can make the children of same-sex households appear to fare fine (if not better), on average, if you control for a series of documented factors more apt to plague same-sex relationships and households: relationship instability, residential instability, health and emotional challenges, greater economic struggle (among female couples), and—perhaps most significantly—the lack of two biological connections to the child. If you control for these, you will indeed find “no differences” left over. Doing this gives the impression that “the kids are fine” at a time when it is politically expedient to do so.

This analytic tendency reflects a common pattern in social science research to search for ‘‘independent’’ effects of variables, thereby overlooking—or perhaps ignoring—the pathways that explain how social phenomena actually operate in the real world. By way of a helpful comparison, I can state with confidence that after controlling for home ownership, residential instability, single parenthood, and neighborhood employment levels, there is no association between household poverty and child educational achievement. But it would be misleading to say this unless I made it clear that these were the pathways by which poverty hurts educational futures—because we know it does.

The academy so privileges arguments in favor of same-sex marriage and parenting that every view other than resounding support—including research conclusions—has been formally or informally scolded. I should know. The explosive reaction to my 2012 research about parental same-sex relationships and child outcomes demonstrates that far more is at work than seeking answers to empirical research questions. Such reactions call into question thepurpose and relevance of social science. Indeed, at least one sociologist holds that social science is designed “to identify and understand the various underlying causal mechanisms that produce identifiable outcomes and events of interest.” That this has not been the case with the study of same-sex households raises a more basic question.

Is the point of social science to win political arguments? Or is its purpose to better understand social reality?

What to Expect from a Topic Emerging from Its Infancy

One byproduct of better data—or perhaps the smell of impending victory by proponents of civil same-sex marriage in America—may be greater intellectual honesty about such relationships. Indeed, researchers have admitted the tendency to downplay “any inequities between same-sex partners . . . in part because of the dominant mantra that same-sex couples are more equal than different sex couples.”

It’s not the only consequential admission. Scholars are increasingly—and openly—squabbling over the nature of sexual orientation itself, signaling the comparative infancy of the social science here. Moreover, there’s a good deal of sexual identity switching being reported among young adults, a fact that does not comport with a honed narrative of immutability.

So should scholars trust self-reported sexual orientations? If people report something different a few years later, should we attribute this to their malleable sexuality or consider them heterosexual “jokesters” bent on messing with survey administrators? It is profoundly ironic that social scientists make strong social constructionist arguments about nearly everything except sexual orientation.

Stanford demographer Michael Rosenfeld’s survey project How Couples Meet and Stay Together (HCMST) reveals that while only 3 percent of heterosexual married persons reported being “at least sometimes attracted” to persons of a gender other than the gender of their current partner in the past year, the same was true of 20 percent of men in same-sex relationships and 33 percent of women in same-sex relationships. While the malleability of self-identified lesbian women is now taken for granted among social scientists of sexuality, the one-in-five figure among men in gay relationships is higher than most would guess.

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In keeping with the data, expect those robust legal arguments leaning on the immutability of sexual orientation to bleed out within the next five years. Indeed, sociologists have never been fans of such biological essentialism, but have kept their mouths shut out of a sense of political duty to a movement they helped birth. No more.

Social scientists will soon wrestle with, rather than overlook, the elevated levels of poverty among well-educated lesbian women in America (as seen in the ACS, NFSS, NHIS, and HCMST). Until now, scholars predictably elected to employ income as a control variable in their studies of child and adult life outcomes, enabling them to avoid confronting the reasons for the unprecedented negative association of education with income among the population of same-sex female couples. Here again, it’s not been about understanding but about winning political battles.

We will also learn much more about the relationship stability distinctions that are common in the data between gay and straight parents. Unpublished research exploring the stability rates of same-sex and opposite-sex couples using data from yet more population-based surveys finds that claims about thecomparability of same-sex and heterosexual couple stability (again, after a series of controls) are actually limited to couples without children. For couples with children, the dissolution rate for same-sex couples is more than double that of heterosexual couples. What remains unknown yet is whether this difference is an artifact that will disappear with legal marriage rights. I doubt it, given that same-sex relationships are distinctive in other ways, too. But it’s an empirical question.

As it turns out, the NFSS was not unique. It was simply more transparent than most datasets and offered a clearer glimpse into the messy reality of many Americans’ household histories. It did the work social science was intended to do—to richly describe and illuminate—but in so doing invited unprecedented hostility.

On a Thursday morning in late June 2015, Americans will be treated to the Court’s decision about altering an institution as old as recorded human history. But one thing that day will not change is the portrait of same-sex households with children. After a series of population-based data-collection projects, we know what that looks like: a clear step down, on average, from households that unite children with their own mother and father.

Biology matters—as new research released this week confirms—and no amount of legislation, litigation, or cheerleading can alter that. Whether the high court will elect to legally sever the rights of children to the security and benefits of their mother's and father’s home is anyone’s guess.

Reprinted with permission from The Witherspoon Institute. 

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Michael Stokes Paulsen

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The case for imposing gay ‘marriage’ is remarkably similar to that for slavery. But can the GOP produce a new Abe Lincoln?

Michael Stokes Paulsen
By Michael Stokes Paulsen

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 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.”

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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

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