Anthony Esolen Anthony Esolen Follow Anthony

Planned Predators and the moral structure of pedophilia

Anthony Esolen Anthony Esolen Follow Anthony
By Anthony Esolen
Image

Oct. 7, 2013 (thePublicDiscourse) - The moral structure of pedophilia is simply this: the welfare of children is subordinate to the sexual gratification of adults.

Jerry Sandusky, former defensive coordinator for the Penn State football team, established a charity called The Second Mile, for boys, mostly fatherless, who were living in troubled homes. It is not clear that he did so initially to lure boys into a trap. But that is what eventually happened, according to the testimony of the men who recalled with shame and disgust their initiation into sodomy.

Raymond Lahey, former Catholic bishop of Antigonish, was apprehended in the Ottawa airport and his computer files scanned. They contained nude pictures of boys. Lahey resigned in disgrace. The Canadian press tried hard to conceal the sex of the children, and suppressed any report about the exotic destinations to which the bishop commonly flew. One isn’t to inquire too closely into travel agencies that do a hopping business flying men to places like Thailand, which teems with boy prostitutes. And girl prostitutes too; apparently Thailand is a favorite sweating-off ground for Korean businessmen.

We should be thankful that the Sanduskys and Laheys are still considered monstrous. But in contemporary America that condemnation rests on sentiment and not on moral reasoning. No one can simultaneously explain why their actions were so vile and uphold the first commandment of the sexual revolution: fulfill thy desires.

It may be argued that the boys were too young to give genuine consent. They were dupes. That may be true of the boys in Pennsylvania, but it cannot be true of the hardened street children in Bangkok. But the horror, the disgust, is out of all proportion to a memory of being duped. If somebody tricks a boy into giving him fifty dollars for a lump of fool’s gold, the boy now grown will look back on the incident with irritation and contempt for the trickster, but not with any horror. The shame of Sandusky’s victims arose not from the trickery, but from the act itself into which they were tricked.

Besides, the fact that a child cannot give genuine consent is not in itself morally decisive. We compel children to do plenty of things for their own good—or for what we say is good. A public school teacher in Toronto has written a set of lessons requiring young children to imagine wearing clothes appropriate for the opposite sex. He’s been congratulated, not by the wary parents, but by a school board that insists that teachers are “co-parents.” What he’s doing, of course, is subjecting naïve children to an exercise that promotes his own sexual aims.

No, it isn’t how Sandusky and Lahey did what they did, or under what circumstances, that explains the disgust. It’s what they did—but nobody wants to acknowledge that.

The reason for that reluctance becomes clear, if we keep in mind the moral structure of pedophilia. Sexual gratification trumps. Thank goodness that for now, there aren’t many men who are sexually attracted to youngsters. In that single case, we raise the banner for the children. But in no other case.

If we altered the question, and asked not how many people have done sexually abusive things with children, but how many people have done sexual things that redounded to the suffering of children, then we might confess that the only thing that separates millions of people from Jerry Sandusky is inclination. Everything that was once considered a sexual evil and that is now winked at or cheered, everything without exception, has served to hurt children, and badly.

We might point here to divorce. Unless it is necessary to remove oneself and one’s children from physical danger and moral corruption, the old wisdom regarding divorce should hold, if children themselves have anything to say about it. Parents will say, “My children can never be happy unless I am happy,” but they should not lay that narcissistic unction to their souls. Children need parents who love them, not parents who are happy; they are too young to be asked to lay down their lives for someone else. It is not the job of the child to suffer for the parent, but the job of the parent to endure, to make the best of a poor situation, to swallow his pride, to bend her knees, for the sake of the child.

Click "like" if you are PRO-LIFE!

We might point to births out of wedlock. The child has a right to enter more than a little nursery decorated with presents from a baby shower. He should enter a human world, a story, a people. He should be born of a mother and a father among uncles and aunts and cousins and grandparents, stretching into the distant past, with all their interrelated histories, with his very being reflected in all those mirrors of relation, not to mention his eyes and his hair, the talents in his fingers and the cleverness in his mind. This belonging to a big and dependable world can be secured only in the context of the permanent love of his mother and father, declared by a vow before the community and before the One in whom there is no shadow of alteration.

Most parents grow reticent when the time comes to tell their children about sex. That reticence is right and natural, as is the quiet of a man’s voice as he brings his son to a holy place, the grave of his grandfather who died in the war, or the little old house where his grandmother was born. Sex is not about the mechanics. The parent must tell the child about the love that brought him into being; and therefore sex is about the past and the present and the future, and about all those who share in the great family network of begetting and of love.

Then along come the Planned Predators, with a cadre of—what shall we call them? What would we call them if they had no “credentials,” no initials after their names? What would we call the old man down the street, wheezing and giggling, who likes to show little kids pictures of people masturbating? I believe the technical term is “creep.” So then, along comes Planned Predators with their creeps, lubriciously introducing children to the delights of meaningless sex, with cartoons of talking penises and vaginas, of a girl bending over with a mirror to inspect her anus, or a boy in his bedroom abusing himself.

Is that unfair? Some people want to have their sexual flings, but are discreet enough to try to keep children away from them; not that they ever succeed entirely, but at least their hypocrisy pays vice’s tribute to virtue. But Planned Predators do not believe in that tribute. There are pedophiles of the body, and pedophiles of the soul. Planned Predators happily enlist the latter among their troops.

One wonders how Sandusky managed to do what he did for so long, without getting caught by parents. Well, the abuser separates the child from the parents. “This is our secret,” says the creep. “Don’t tell your parents,” sibilates the lizard. “They won’t understand.” “Your parents haven’t treated you right,” hisses the snake. “Your parents are old-fashioned. Your parents are selfish. Your parents have their own agenda. You don’t have to submit to your parents. You can be your own person,” wheedles the weasel, meaning: Submit to me.

That is the same strategy that the credentialed spiritual pederasts use. Parents are the enemy. The parents are kept in the dark. The parents are too benighted to know what is best. The parents—even such sporadically responsible parents as our generation has produced—wouldn’t know about how happy it is to be sexually free.

One begins to wonder whether it is not the harm done to the child that counts, in our world of advertising-as-truth, but the style with which it is done, or the class to which the child-destroyer belongs. It is hard for those who do not think about the essences of things to judge actions and not actors.

So the soggy-jowled sweaty old football coach Sandusky pins a boy to the wrestling mat and has his way, and he is justly condemned for it, but the little girl-loving Jimmy Savile, darling of the BBC, flaunts his immorality for years, to the knowing jests of many an unreporting reporter. So Kermit Gosnell, a man with the morals of Josef Mengele but without the same surgical skills, is nonplussed to learn that many a reliable immoralist expresses disgust at his having turned abortion into more than a hand-over-fist moneymaker: a hobby, with a delightful trove of preserved parts, cut from their owners to the jaunty percussion of the scissors.

What, after all, is he doing to those babies that differs in more than style from what the prim waspish feminist doctor is doing uptown in Rittenhouse Square? He laughs while he works, and she dons the serious mien of a soldier in the army of Equality, doing what she must, and making money for it—mustn’t muzzle that ox as she treads out the corn.

And the welfare case who, at her wits’ end, takes a whip to the boy who can throw her to the floor, she is led off to family court, she with the tobacco stains on her fingers and the voice ground down into tenor. But the sophisticated “single mother,” with her degree in Women’s Studies from Wellesley, living in the high-rent belt around Boston, dresses her daughter up as a neuter, and turns a cold shoulder when the child begs to be treated like an ordinary girl. No time in jail for her; rather a date for the savante nouvelle to lecture at the local library, one week after her friend lectures on the cruelty of treating dogs as if they were not dogs, and one week before her other friend lectures on gluten-free wheat and yolkless eggs.

John Williamson, self-professed swinger, the proprietor of a massive nudist and adultery farm, receives from the national presses an obituary worthy of a great artist or inventor, and no one pauses to ask how many children’s lives were snuffed out or made miserable by the perversions of their elders; but the former Pope Benedict, the gentle-spoken and staid professor of a morality that was not so long ago taken for granted by nearly everyone, he whose only sin is that he still calls a sin a sin, could only wish to be treated with dull neutrality, or even respectful enmity. Style, man, style.

Anthony Esolen is Professor of English at Providence College in Providence Rhode Island, and the author of Ten Ways to Destroy the Imagination of Your Child andIronies of Faith. He has translated Tasso’s Gerusalemme liberata and Dante’s The Divine ComedyReprinted with permission from The Public Discourse

Truth. Delivered daily.

Get FREE pro-life, pro-family news delivered straight to your inbox. 

Select Your Edition:


Share this article

Advertisement
Featured Image
Shutterstock.com
Ben Johnson Ben Johnson Follow Ben

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

Ben Johnson Ben Johnson Follow Ben
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.

Click "like" if you want to defend true marriage.

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.)

Advertisement
Featured Image
Shutterstock.com
Mark Regnerus

, ,

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.

Click "like" if you want to defend true marriage.

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. 

Share this article

Advertisement
Featured Image
Shutterstock.com
Michael Stokes Paulsen

,

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.”

Click "like" if you want to defend true marriage.

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

Share this article

Advertisement

Customize your experience.

Login with Facebook