Matthew J. Franck

Mark Regnerus and the storm over his controversial gay parenting study

Matthew J. Franck
By Matthew Franck

November 19, 2012 (ThePublicDiscourse) - Seldom has the publication of a dry, factual report in sociology caused such a storm of controversy. In June 2012, the bimonthly peer-reviewed journal Social Science Research published an article by University of Texas sociologist Mark Regnerus titled, “How different are the children of parents who have same-sex relationships? Findings from the New Family Structures Study.” The answer to his title’s question was: quite a bit different, and most of the differences are not good.

Within minutes, it seemed, Professor Regnerus, a gifted and highly productive scholar with two previous books published on related subjects, was denounced as “anti-gay,” attacked personally and professionally, and his thoughtful, measured research conclusions were buried under an avalanche of invective, abuse, and misunderstanding. For the remainder of the summer months, Regnerus withstood an onslaught of criticism, but as the autumn arrived, it became clear that his reputation and the soundness of his research had been vindicated.

What had happened?

The editor of Social Science Research, Professor James D. Wright of the University of Central Florida, had known that Regnerus’s article would spark discussion about family and sexuality among sociologists. As he would later say himself when others complained that he was trying to drive up the readership of the journal, “guilty as charged.” What editor doesn’t want people reading and talking about what he works so hard to produce?

This is why Wright published, alongside Regnerus’s new research, a probing criticism of the inadequacy of nearly all previous research on the question of parenting by people in same-sex relationships, authored by Professor Loren Marks of Louisiana State University (who was not connected with Regnerus’s new research in any way). It’s also why Wright invited critiques to be published, in the same issue, by three experienced scholars in the sociology of the family (Paul Amato, David Eggebeen, and Cynthia Osborne), with rejoinders by Regnerus and Marks. It made for a very interesting exchange.

The June 2012 issue of SSR was a red-hot topic of controversy because Regnerus and Marks overthrew a “consensus” among sociologists on the “no differences” thesis—the view that there are no meaningful differences, in the life outcomes of children, between those raised by heterosexual parents and those raised by gay or lesbian ones.

In its most extreme form—one that is not even supported by the generally low-quality research published before Regnerus’s article—the “no differences” thesis holds that children raised by parents who have same-sex relationships do just as well as, or in some cases even better than, those raised in the intact biological family by their own natural parents who are and remain faithfully married to each other.

The American Psychological Association, despite the cagy wording of its bombshell assertion, was probably happy to invite this unwarranted inference in its 2005 legal brief, published to influence judicial deliberations in same-sex marriage lawsuits. The APA said “the evidence to date suggests that home environments provided by lesbian and gay parents are as likely as those provided by heterosexual parents to support and enable children’s psychosocial growth.” And who didn’t think of the Ozzie-and-Harriet natural family when reading “heterosexual parents” in that sentence?

But as Loren Marks showed, the 59 studies grounding the APA’s statement were all deeply flawed, with sampling and design problems, inadequate statistical rigor, and conclusions about “no differences” that could not be justifiably generalized to the larger population.

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And whereas Marks offered only well-founded criticism of previous research, Regnerus offered something new: the first research employing a large, random sample of the young adult population, directly asking them about their childhood experiences and their present state of life, across a range of variables touching on economic and educational success, romantic and sexual experience, substance abuse, experiences with crime and violence, and so forth.

Regnerus and his colleagues in the New Family Structures Study (NFSS), working with the research firm Knowledge Networks, screened more than 15,000 Americans between the ages of 18 and 39, and interviewed nearly 3,000 of them. The subjects’ family experiences were sorted into eight categories, ranging from the intact biological family (with the subject’s parents still together at the time of interview), across various family structures involving divorce, remarriage, adoption, and single-parenting, with two categories for subjects raised by mothers or fathers who had same-sex romantic relationships during their childhood.

The results were dismal for the “no differences” thesis: on 25 out of 40 outcomes variables, the children of mothers who had had lesbian relationships fared poorly compared to the children of intact biological families. And on 11 of the 40 outcomes, the children of fathers who had had gay relationships fared poorly on the same comparison. (For a summary of the study’s findings, see Ana Samuel’s Public Discourse article, “The Kids Aren’t All Right,” and this link here.)

Regnerus was cautious in his conclusions: he didn’t label poor outcomes as effects of parents’ sexuality, and noted that “a variety of forces uniquely problematic for child development in lesbian and gay families” could account for the phenomena. But, he concluded, “the empirical claim that no notable differences exist must go.”

The high quality of the New Family Structures Study’s research design, data collection, and findings, and the firmness of Regnerus’s conclusion that the “consensus” in sociology was exploded, only seem to have encouraged interested parties, in the academy and outside it, to attempt to debunk the NFSS. UCLA demographer Gary Gates assembled about 200 scholars to denounce Regnerus’s article, but to little substantive effect.

In the public arena, Regnerus saw his research crudely hashed over at The New Yorker, The New Republic, and the Huffington Post, among other places—and found himself caricatured as strapped to a Catherine wheel on the cover of the Weekly Standard. These are not normal experiences for your average stay-at-home sociology professor. Clearly Regnerus’s political adversaries saw much at stake in the public reception of his research. (For the legal stakes, see my Public Discourse essay, “Supreme Court Take Notice: Two Sociologists Shift the Ground of the Marriage Debate.”)

The two main criticisms of Regnerus’s article, repeated in numerous variations, are these. First, he had used the abbreviations “LM” (for “lesbian mother”) and “GF” (for “gay father”) to describe subjects who knew that their mother or father had a romantic same-sex relationship of any length before the subject turned 18.

The use of “LM” and “GF” was culpably misleading, critics claimed, because the category might include persons who never “identified” as lesbian or gay, and might only have had a “one-night stand” with a same-sex partner. The second criticism, closely related, was that in comparing these young people raised in “LM” and “GF” households, so defined, with those raised in “IBF” households—married heterosexual couples raising their own biological offspring and staying together throughout the subjects’ lives (even beyond their childhood, to the present)—Regnerus was comparing apples to oranges.

In their view, he should have compared children of IBF households with children of long-term, intact, stable same-sex couples who identify as gay or lesbian. Then, they were sure, the differences he found would largely disappear—as they claimed was shown by the previous research Regnerus and Marks had each criticized for their small, unrepresentative samples. What he was really doing, they claimed, was setting stable family situations next to unstable ones—and so stability was the real variable at work. To make it seem that the differences were “about” sexuality was worse than an error, critics claimed: this was culpable distortion of the social phenomena, a twisting of social science in the service of conservative ideology.

A third, more ad hominem criticism was that Regnerus received the majority of his grant funding from the Witherspoon Institute (publisher of Public Discourse), and a minority from the Bradley Foundation—both of them viewed as “conservative” institutions in their educational and philanthropic efforts. But Regnerus declared these facts in his original article, and told his readers that neither Witherspoon nor Bradley had any role in shaping the conduct or the conclusions of his research, which he has made wholly transparent. No one has ever gainsaid this avowal on his part. For my part, I can say that Regnerus had no input on my choice to write this account of the controversy or its content.

In the less responsible precincts of the blogosphere, Regnerus was the target of vicious calumnies along the lines described above, one of which led to the opening of an official “inquiry” by the University of Texas at Austin, where he teaches, to determine whether he had committed “scientific misconduct.”

At UT, the policy in such matters is that the merest squeak from any party alleging misconduct is enough to trigger a preliminary inquiry, which in 60 days must determine whether a full-blown investigation is warranted. The university swung into action, doing everything by the book, at no little inconvenience to Regnerus, but at the end of August the UT “research integrity officer” concluded that no plausible charge of misconduct could be substantiated. The university’s provost accepted that conclusion, and closed the matter without prejudice to Regnerus’s standing as a scholar and teacher.

Meanwhile SSR editor James Wright was under fire for publishing Regnerus’s article; for appearing to rush it to publication; and for placing Marks’s article alongside it. Opting for transparency at some risk to his own reputation, Wright asked a member of SSR’s editorial board to “audit” the process that led to the publication of Regnerus’s article.

The risk was that he chose Darren E. Sherkat, a sociologist at Southern Illinois University whom Regnerus would later describe (without fear of contradiction) as someone “who has long harbored negative sentiment about me.” Sherkat, speaking out of school, confidently told a writer for the Chronicle of Higher Education in July that Regnerus’s study was “bull****” when his audit was still in draft form and neither Regnerus nor Wright had written a response to it.

Sherkat’s audit and several other items of interest have now been published in the November 2012 issue of SSR, in a special 40-page section introduced by Wright. To his credit, when he sticks to the charge he was given, Sherkat finds that the journal’s editor did nothing wrong in publishing either Regnerus’s article or Marks’s.

Wright referred both papers to knowledgeable scholars of the subjects involved, who held varying views on the politics of same-sex unions, and who unanimously recommended their publication. No violations of normal procedure occurred; Sherkat says he “may well have made the same decisions” Wright did, given the reviews; and he dismisses as “ludicrous” any suggestion that the editor was up to anything political.

To his discredit, Sherkat, a sociologist of religion who does not appear to have done any research on family and sexuality issues (but for a single article studying how religion and political affiliation affect views of same-sex marriage), nonetheless appoints himself a final referee of the merits of Regnerus’s research—not a function he was asked to perform—and opines that it should not have been published.

James Wright, correctly, takes Sherkat’s conclusions as an auditor as vindication of his editorial performance, and rightly discounts his colleague’s attempt to set himself up as a post hoc referee with a veto over publishing Regnerus’s scholarship. If he sent the work to knowledgeable reviewers who unanimously said to publish it (and Wright notes that such unanimity is unusual), that seems to be the end of the affair.

But it isn’t. In the latest issue Wright chose to publish two significant new contributions to the discussion begun in June. The real issues with Sherkat and other critics are joined by Regnerus, who returns to the pages of SSR with a vigorous response and a re-analysis of his data, and by Professor Walter Schumm of Kansas State, who contributes an expert review of what we know from social science today about the interwoven variables of sexuality, family stability, and childrearing outcomes.

I’ll say more on these contributions in tomorrow’s essay.

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Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey, and Professor Emeritus of Political Science at Radford University. Reprinted with permission from The Public Discourse.

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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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