Christopher O. Tollefsen

Dismantling the new atheism

Christopher O. Tollefsen
By Christopher Tollefsen
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July 5, 2012 (thePublicDiscourse.com) - Richard Dawkins, Daniel Dennett, Sam Harris, and the late Christopher Hitchens, collectively known as the “new atheists,” embody one of the most aggressive recent manifestations of both “scientism” and ”naturalism.” This new atheism is characterized by extreme forms of both scientism, a view about knowledge that holds that only what can be demonstrated scientifically deserves to be considered knowledge, and naturalism, a view about reality that holds that only the material world is real. Hence it is hostile to religion in all forms, viewing it as merely a kind of superstition; it is likewise hostile to much “folk” understanding, including traditional claims about the nature and source of morality.

It is thus good news for everyone that Alvin Plantinga, one of the most influential philosophers of the twentieth and early twenty-first centuries, has addressed and, I should say, systematically dismantled, the claims of the new atheists in his recently published book, Where the Conflict Really Lies: Science, Religion, and Naturalism. Plantinga’s book, generally written at a level accessible to any educated person, is essential reading for anyone concerned not only with theclaims of the new atheists and what can be said contrary to those claims, but also, as I shall discuss below, with their way of making those claims, for they have adopted a style hostile to the very idea of public discourse, a style that now threatens almost every area of contested moral and political discourse in our country.

Plantinga defends two claims throughout his book. One is that there is “a superficial conflict but deep concord between theistic religion and science;” the other is that there is “a superficial concord and deep conflict between naturalism and science.” The bulk of the book is devoted to the first claim. Plantinga begins by discussing the conflict between theism’s claims that God acts in the world as a creator, sustainer, and guide (claims common to at least the three Abrahamic religions), and Darwin’s claim to have discovered the means—random mutation plus natural selection—by which later species, including human beings, have evolved from earlier species.

The claim of the new atheists is that Darwin’s “dangerous idea,” as Dennett calls it, proves that there is no divine agency responsible for the world. As Dennett explains, “an impersonal, unreflective, robotic, mindless little scrap of molecular machinery is the ultimate basis of all the agency, and hence meaning, and hence consciousness, in the universe.” But the claims of Darwin show no such thing: even if Darwinism accurately identifies the mechanism by which evolution has occurred, Plantinga notes, “it is perfectly possible that the process of natural selection has been guided and superintended by God, and that it could not have produced our world without that guidance.”

Moreover, there is a very good reason for thinking that the world as it is would not have been possible but for God’s agency, and that is the existence of creatures with minds. Theists believe, as Locke put it, that it is “impossible to conceive that ever pure incogitative Matter should produce a thinking intelligent Being.” Mind, theists believe, can only come from mind (or Mind). So, on the basis of this argument and several others, Plantinga concludes Part I of his book by claiming that the conflict between Darwin and theism is only apparent.

The conflict is somewhat greater as regards other scientific claims; in particular, many claims coming from evolutionary psychology and historical biblical criticism are, as far as they go, incompatible with some or all aspects of, for example, Christian belief. That all human action is a result of mechanisms selected because they enhance the power of one’s genes to reproduce is clearly incompatible with Christian normative demands to love one’s neighbor: one is not doing that if one’s actions are really undertaken for the propagation of one’s genes. And to varying degrees, the claims of historical biblical scholarship are either in conflict with revealed religion, if those claims deny straightforwardly the possibility of supernatural action in the world, or fall far short of the claims of religion, if they methodologically abstain from using any but naturalistic assumptions.

Yet none of these claims, argues Plantinga, provides defeaters for religious belief; and the reason for this is that the evidence base against which a Christian, for example, assesses the claims of evolutionary biology or biblical scholarship, includes claims that cannot be known only by science’s methodological naturalism.

Most prominently, Christians hold that some truths are known by faith, through the inspiration of the Holy Spirit; faith, like knowledge, is thus aimed at the truth. Plantinga writes, “My evidence base contains the belief that God has created human beings in his image. I now learn that, given an evidence base that doesn’t contain that belief, the right thing to believe is that those mechanisms [of faith] are not truth-aimed; but of course that doesn’t give me any reason at all to amend or reject my belief that in fact they are truth-aimed.”

In other words, if we take evidence gathered only from one source of truth, we will fail to have a defeater for a claim that appears true on the basis of all of the possible sources of truth: so even though the witnesses say they saw me slash a colleague’s tires (perceptual evidence), if I remember being out of town that day (memorial evidence), then the witness claims do not defeat my belief that I did not slash the tires.

But can’t the new atheists simply help themselves to the premise that science is the only source of knowledge? We might wonder on what basis they could: surely it is not a claim of science that science is the only source of knowledge. But this, as we will see, is only one way in which extreme naturalism threatens to be its own worst enemy.

In the third part of the book, Plantinga turns to the question of whether in fact theism might be in concord with contemporary science, rather than in conflict. After looking at, and giving a fairly weak endorsement to, some arguments in support of intelligent design and fine-tuning, Plantinga argues that in fact the theistic worldview is as a whole deeply consonant with the goals and successes of contemporary science.

This is because theism holds, as atheistic naturalism denies, that God has created us in his image, as rational beings. But as rational, yet finite, beings, we are truth-seekers, and for the theist it makes perfectly good sense to think that God has also created a world that is available to us to know: “God created both us and our world in such a way that there is a certain fit or match between the world and our cognitive faculties.”

Plantinga then identifies a number of features of our world, and our cognitive relationship to that world, that are much more likely, and make much more sense, on a theistic than on an atheistic picture: the reliability and regularity of nature, and its working in accordance with law; the role of mathematics in the understanding of nature; the possibility of induction; the appropriateness of theoretical virtues such as simplicity; and even the empirical nature of science, which Plantinga argues is underwritten by the contingency of divine creation. In all these respects modern science is deeply compatible with theism, a fact that renders unsurprising the further fact that all the great founders of modern science were theists, working from a deeply Christian background.

So the conflict between science and religion is, Plantinga shows, largely bogus (and I have only scratched the surface of his arguments here). But things are even worse from the standpoint of naturalism, for on the naturalist account, there is no good reason to think that our cognitive faculties are truth-tracking. After all, it is not because those faculties contribute to true beliefs that they are selected for in the Darwinian account; it is because they are likely to contribute to survival.

Can the naturalist expect, as the theist clearly can, that her cognitive faculties are reliable, i.e., that they lead to true beliefs? Since natural selection does not select for truth, or truth-tracking faculties, but for other unrelated properties, we have no reason to expect so given naturalism. Of course, we have very good reason to think our beliefs are reliable; so this claim should not bother most people. And non-naturalistic theists will believe that even if evolution is true, God has overseen evolution with a view to the reliability of our cognitive faculties. The naturalist cannot rely on any such claim.

But since the inability to rely on cognitive faculties as reliably truth-tracking is a defeater for any belief whatsoever, it is a defeater also for naturalism; accordingly naturalism turns out, on Plantinga’s argument, to be self-defeating, and cannot be rationally accepted.

So Plantinga gives a wealth of argument for the theist to use against the claims of atheism. And in this, it must be said, he exercises considerably more intellectual virtue than his opponents. Plantinga’s early chapters are devastating in revealing that the prime architects of the new atheism almost inevitably gravitate toward straw-man characterizations of their opponents’ views, attribute venal motives to their opponents, and fail to investigate the intellectual sources of Christianity, giving no weight, for example, to the classical arguments of Aquinas and Locke, or the arguments of contemporary theists such as Swinburne and van Inwagen. Their rhetoric is inevitably condescending, as the development of the recent cult of the “flying spaghetti monster” makes clear.

But what is worse, some of the new atheists seem to have adopted this strategy deliberately. Plantinga quotes from a blog post of Dawkins in which he says that those unconvinced by the new atheists “are likely to be swayed by a display of naked contempt. Nobody likes to be laughed at. Nobody wants to be the butt of contempt.”

Plantinga speaks of the “melancholy” with which one should view this spectacle; yet it seems increasingly characteristic of an important strand of intellectual, if the word is appropriate, approach to the most contentious issues of the day. Those who dissent from academically “respectable” views about religion, evolution, global warming, sexual ethics, the nature of marriage, and the value of unborn human life are increasingly addressed with scorn and public shaming rather than intellectual argument and reasoned discourse; and their opponents are often unwilling even to acknowledge their good will and good faith. This is not a strategy compatible with a love of truth or a love of neighbors, and those on its receiving end should not, of course, respond in kind. The wealth of argument in Where the Conflict Really Lies points to an altogether better path.

Christopher O. Tollefsen, Professor of Philosophy at the University of South Carolina, is the editor of Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle. Tollefsen sits on the editorial board of Public Discourse. This article has been republished from Public Discourse with permission.

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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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