Matthew J. Franck

Same-sex marriage and social change: exceeding the speed of thought

Matthew J. Franck
By Matthew Franck

January 11, 2013 (thePublicDiscourse.com) - It is remarkable that the idea of same-sex marriage has gained ground so rapidly. Those most quick to accept the idea have been elite liberals, with ordinary Americans lagging behind but becoming more accepting of the idea. In the thick of the struggle over the law and politics of marriage, we can easily forget how novel is the idea of two men or two women marrying each other.

This fact came home to me when I participated in a forum on the subject at Princeton University last spring. Present in the room were two lions of the liberal academy, each past the “threescore years and ten” of which the Psalmist speaks, each a distinguished scholar with many publications to his credit, each known for his devotion to liberal causes. Both gentlemen expressed the opinion that the cause of same-sex marriage was obviously just, that opponents of the cause were obviously reactionary and benighted, and that this was plainly the new civil rights struggle of our time.

Yet it struck me that if denying same-sex couples the “right to marry” was such an obvious and gross injustice as to merit such energetic claims today, why had it never occurred to either of these august scholars decades ago, at the beginning or the middle of their careers? In the books of proud advocacy each had published, say, twenty or thirty years ago, there was not the slightest hint that American public life was disfigured by this particular injustice.

Redefining marriage to include same-sex relationships simply didn’t occur to them, because it didn’t occur to anyone. Yet that day they espoused that view with the fervor of men who had always thought so, and for whom it was unthinkable to believe otherwise. If they reflected on this change in their own thinking, would they conclude that their reasoning powers had been deficient years ago, or their moral sympathies inadequate?

It is, of course, possible for people to evolve in their thinking, and to come to views that weren’t on their radar in earlier days. But this seems to be a special case, not accounted for by the emergence of a genuinely new issue, nor by new knowledge, nor by a change of heart or of mind about something basic. The scholars of whom I speak, for instance, have been liberal in their attitudes toward homosexuality for many decades. One could well believe that mistreatment of homosexuals was wrong, without believing it was even possible for two persons of the same sex to marry.

If we compare the issue of same-sex marriage to an issue with which it is often equated, that of interracial marriage, we find that it stands out as unusual yet again. Like slavery itself, the now-discredited ban on interracial marriage was never without critics who complained of its injustice. Only racists thought such a ban was just, and Americans were not universally racist.

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By contrast, no advocates of justice in human history, prior to the modern sexual revolution in the West, ever thought of same-sex marriage, whatever their views on society’s treatment of homosexual persons. This historical reality brings us to Michael J. Klarman’s new book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. Klarman, a Harvard law professor whose very large book on the struggle for African-American civil rights won the prestigious Bancroft prize in history, has written a much shorter book this time around because all the history he relates is so very recent. Every significant element of the story has occurred in just the last twenty years. And the overwhelming impression one gets, in the pages of From the Closet to the Altar, is of social change taking place at dizzying speed, with very little thought about where we are going.

Strictly a legal-political history in its first eight chapters, Klarman’s book is a thorough and instructive tour of the last few decades, but only on a very narrow subject. The author’s tight focus on the marriage issue makes the book unsuitable as a history of American sexual attitudes and mores, of homosexuality generally, or of other “gay rights” issues; all these subjects tangentially appear only in connection with the marriage question. The spotlight is on activists, lawyers, judges, politicians, and public officials as they battle over whether marriage will be redefined to include same-sex relationships; in the background are voters and the general public as the terrain of the contest among elites.

But here is perhaps the useful reminder provided by Klarman’s book. Not only did no one ever believe, before the last few decades, that justice required us to redefine marriage as the solution to some problem. Among gays and lesbians themselves, it remained highly contentious, until still more recently, whether marriage was even something they wanted. They universally desired better treatment from the larger society, but it was by no means universal among them to desire marriage as the mark of that better treatment. And it was not just a question of whether they wanted to press for marriage now or later, as a tactical matter; it was an open question whether they wanted it at all. In the memory of any of us of middle age who have known gays and lesbians all our lives, we quite vividly recall the commonly expressed view among them, not long ago, that marriage was “for straights,” or “for breeders,” in the patois of the gay subculture.

Of this we should pause and take stock for a moment. The consensus among gays and lesbians today (with very few dissenters) is that they do indeed desire the right of civil marriage. But why do they want it? The question is seldom asked. They so plainly desire it so very much that it seems rude to ask.

Well, why have men and women throughout the ages wanted to marry—to unite with each other in a private relation that is publicly recognized, honored, and commonly sanctified? The answer may be found in another recent book, by Sherif Girgis, Ryan T. Anderson, and Robert P. George, titled What Is Marriage? Man and Woman: A Defense. Sexual attraction and romantic love may prompt a couple’s desire to be together, but they marry in order to make something new that honors and ennobles that attraction and love: the nucleus of a family, in a comprehensive relation of husband and wife that points toward the future, with an openness toward making that future through procreation.

We know that marriage can take place without procreation, and most assuredly procreation can take place without marriage. But as a public institution founded on private relations, marriage would not exist were it not for the offspring that regularly result from marital acts. And so, ask the question again: why do (typically young) men and women get married? What purpose are they pursuing? In the paradigm case, the answer is: to start a family in the way all families are made possible in nature, by sexual intercourse and childbearing.

Same-sex couples can and do raise children, but in no case can a child be the offspring of both partners. The family-with-children headed by a same-sex couple, then, is by definition an exceptional case, and cannot ever be the paradigm case of a marriage-based family. In this it resembles opposite-sex couples with stepchildren or adopted children, but only superficially. The difference that still remains is that these opposite-sex couples can provide their children with both a mother and a father, which same-sex couples cannot do. Whether that is a difference that makes a difference is a fitting question, not one to be banished as invidiously discriminating before it is asked.

Where the “conjugal view” of marriage is concerned (as What Is Marriage? calls it), as opposed to the “revisionist view,” something both natural and necessary is pursued. Uniting sexually complementary persons so that new life is brought into the world, and children are provided with mothers and fathers (and this by adoption or stepparenting or the like where “nature” fails), is what marriage has always been about at its core. And it is in order to foster this union and its fruits that marriage is recognized and protected by the laws.

In the revisionist view, marriage comes to be about something else. Throughout Klarman’s book one encounters this fact, though the author, whose prejudices are entirely in favor of this change, makes no effort to present it. For same-sex marriage advocates, marriage is about material benefits (of financial advantage, inheritance rights, control of medical care, etc.), or it is about social status and recognition (the attainment of equality under the law for a relationship hitherto left out of its ambit), or it is about a liberationist ideological project (the normalization and acceptance of homosexuality by the “heteronormative” larger society), or it is about some “transgressive” project (to transform our understanding of marriage because its traditional norms are thought to be unjust, or part of a larger fabric of injustice).

How strange this all looks from the standpoint of the tradition these advocates presumably seek to join. Men and women too might marry for some of these reasons (e.g., for material advantage or status), but they are not why marriage exists, and we are inclined to think ill of couples whose reasons for marriage do not go to the core of its purpose and nature. A change to the definition of marriage that eliminates, among its essential features, the purpose for which it came into being in the first place, is quite a step to undertake.

Throughout From the Closet, we find leading figures in the fight for same-sex marriage trying to divert the attention of voters, legislators, and judges away from the very unorthodox nature of the claim they are making on marriage as an institution. Again and again they are portrayed as pressing on accepted precepts of equality—the condemnation of “discrimination,” the application of “rigorous scrutiny” by judges to claims on behalf of tradition, and so on—as though the thing they so ardently desire were simply an extension of marital norms on which all agree.

Yet this is an astounding case of misdirection. The truth is that they wish to redefine a foundation stone of human society in such a way that it will no longer bear the weight we put on it. As others have observed, redefining marriage to include same-sex relationships completes the separation of marriage from its true nature, already begun by modern divorce law and other social changes, by making it about adult desires rather than the formation of families and the welfare of children.

Klarman turns, in the final three chapters of his book, to the correlation of forces that, in his view, will “inevitably” result in the establishment of same-sex marriage in the whole United States, probably as a result of a Supreme Court ruling in the near future. Here the most striking thing, coming from the pen of a law professor and constitutional historian, is how little interest he takes in the legal arguments and their persuasive connection to constitutional principles. Klarman seems to regard the Supreme Court justices as life-tenured Solons, lawgivers for the nation who act on their own moral convictions, and a rough sense of public opinion, rather than on legal principles discernibly present in the supreme law of the land to which the people have consented.

It is best not to be too confident of the success of a movement that has existed for so short a time, is so unsure of its arguments, and is so heavily reliant on a cynical view of constitutional government. With two cases on the Supreme Court’s docket, we will find out very soon how well moral and legal incoherence hold up, in the court of law and the court of public opinion.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. This article 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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