Jack Fonseca

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Sorry, Canada’s abortion regime is no ‘role model to the world’

Jack Fonseca
Jack Fonseca

I never knew there was a “responsible” way to kill babies. That is, until I read Joyce Arthur’s recent article where she gushes over the upcoming 25-year anniversary of the Morgentaler ruling when the Supreme Court struck down Canada’s laws on abortion.  She is the Executive Director of the Abortion Rights Coalition of Canada.

Yup. She schooled me good. Thanks to Joyce, I now realize that Canada’s mass killing of millions of children in-utero is actually “responsible abortion care”.  Golly gee, if all it takes to ascribe a positive meaning to an ugly act is changing the words we use, I suppose a child pornographer should likewise be able to call himself a “responsible sex educator”.

Joyce explained that the January 28, 1988 ruling has made Canada “a role model to the world”. Her article laid out reasons for that honour, including the following claims:

1. In Canada, “doctors and women handle abortion care responsibly.”
2. Canada permits “abortion-on-request” for any reason at all, no questions asked.
3. Our abortion status quo respects a woman’s right to “bodily integrity.”
4. “Maternal deaths and complications from abortion are fairly low.”
5. Abortion-on-request is the “moral high road”—it “saves lives, raises women’s status, and…  benefits everyone.”

Hmm. Do Joyce’s high-sounding claims hold up to scrutiny as reasons for Canada to be a role model for the world? Let’s examine each one.

Reason #1: In Canada “doctors and women handle abortion care responsibly

Let’s set aside the small detail that killing innocent people is never responsible, and look only at the technical veracity of this statement.

First, the term “responsibly” suggests there is a significant measure of self-restraint involved in the decision to abort.  To use the famous Clinton cliché, it implies that abortion should be “rare” and committed only in dire circumstances.  With easily over 100,000 abortions committed in Canada every year (Stats Canada figures under-report because provinces withhold data), this statement collapses under the weight of that massive number.  If our nation annually aborts a population the size of the City of Kamloops, we’re not describing “responsible” behavior. We’re not talking about a “rare” situation. We’re describing a situation that’s out of control, without any restraint at all. Add to this, the statistic that 1/3 are repeat abortions and we can safely say that “willy nilly” is a more accurate description of our abortion regime than “responsible”.

Secondly, the assertion that “doctors and women handle abortion care responsibly” suggests that women are jointly discussing this decision with their family doctor, and that it’s arrived at with the thoughtful counsel and support of the woman’s family doctor.  The statement harkens to a favourite line of pro-abortion politicians: “It’s a decision between a woman and her doctor.”  The problem is that it’s a near-total lie.  Much, if not almost all of the time, women never discuss abortion-choice with their family doctor. Women, oftentimes coerced by a boyfriend or husband, simply call the abortion facility or a “sexual health office” and book an appointment. There’s no involvement with the woman’s doctor at all. The first doctor she encounters is the abortionist whom she gets to meet for the first time on the operating table. By that point, the decision to abort has been made. The abortionist isn’t here to counsel her. He’ll spend about 20 minutes with her to dismember and decapitate her baby. The woman is not even likely to see much of the abortionist’s face. 

Sorry Joyce, but no cigar on this one.

Reason #2: We permit “abortion-on-request” for any reason at all, no questions asked

Is abortion-on-demand, as it’s often called, something to make Canadians proud? According to figures from the abortion industry’s own research division, The Guttmacher Institute, plus independent statistics gathered by seven U.S. state governments, abortion is used today as a back-up birth control method more than 96% of the time.

The majority of people I speak to who identify as “pro-choice” tell me they are disgusted to learn that abortion is being used as a form of birth control. Once again, Joyce got it wrong.  Our regime of abortion-on-request is a source of national shame, not national pride.

For historical clarity, I’ll mention that even prior to the 1988 court ruling, in practice, Canada already had abortion-on-demand. The law passed by Pierre Trudeau in 1969 created “Therapeutic Abortion Committees” (TACs) in hospitals, which were panels of 3 doctors who had discretion to approve the killings.  Already, between 1969 and 1987, abortion rates had shot up dramatically under the TAC regime because the doctors rubber-stamped virtually all applications. For example, we’ve seen from the therapeutic abortion records of an Ontario hospital between 1971 (when they started) until 1988 (when the committee was disbanded), that no request was refused. The committee never saw the woman and indeed, they signed the papers in the hallways. 99% of abortions were committed for “mental health and psycho-social reasons”, and this means they were approved on request.  The records show this hospital had many repeat abortions and one year, a woman had her fourth abortion. The procedure was definitely being used as a form of birth control.

Reason #3: Our abortion status quo respects a woman’s right to “bodily integrity

I’m really baffled by this one Joyce. How are we helping women achieve bodily integrity when abortion chops up the tiny bodies of baby girls and dismembers them? What about the “bodily integrity” of the girl-child in the womb?  If you have the stomach for it, look at this photo of an actual aborted baby, and ask yourself if she has “bodily integrity”.

Reason #4: “Maternal deaths and complications from abortion are fairly low

Fairly low compared to what? A 100% correlation? The studies I’ve read show a dramatic relationship between women who abort and subsequent maternal death, suicide and complications.

An authoritative 1997 study funded by the government of Finland established that women who undergo induced abortion experience a death rate nearly 4 times greater than women who give birth. This excludes death from suicide, which another Finnish study found to be 6 times higher for women who abort than women who give birth.

A study sponsored by the College of Physicians and Surgeons of Ontario found that women who underwent abortion experienced a 4 times higher rate of hospitalization for infections vs. childbirth. In 2000, the UK’s Royal College of Obstetricians and Gynecologists established that the immediate physical complication rate of induced abortion is at least 11%. A similar U.S. study found a higher complication rate of 17%.

Reason #5: Abortion-on-request is the “moral high road”—it “saves lives, raises women’s status, and…  benefits everyone

Wrong, wrong, and triple wrong.  First, abortion doesn’t save lives, it takes them. Not only the babies’ lives, but also those of the women who abort, as evidenced by the much higher maternal death and suicide rates.  The abortion industry would likely counter with the tired, old spectre of the “thousands of women” who would die by “back alley coat hanger” abortions, if they were made illegal. That was a lie in 1969 and it would still be a lie in 2013. Former abortionist, the late Dr. Bernard N. Nathanson admitted after his pro-life conversion that he and other abortion industry leaders invented out of thin air the figure of “tens of thousands of women dying from illegal abortions”. This was to gain public sympathy for legalization.  Those high numbers were never true.  The fact is that for decades prior to its legalization, 90 percent of abortions were done by physicians in their offices, not in back alleys, as Randy Alcorn shows in his book ProLife Answers to ProChoice Arguments. If abortion became illegal in 2013, doctors who choose to break the law would still do them with medical equipment, not with coat hangers. The suction tube equipment used by abortuaries is inexpensive and easy to obtain.

Secondly, legal abortion doesn’t raise women’s status.  On the contrary, it makes it easier for men to keep treating woman as purely sexual objects whom they can simply pressure or coerce into abortion should they ever become pregnant.  The sexual revolution has not liberated women. It has liberated men to objectify and abuse women.

Finally – does abortion really “benefit everyone” as Joyce claims?  A root cause of the impending bankruptcy of Medicare and the Canada Pension Plan (CPP) is the decline in Canada’s birth rate since the 1960’s.  Naturally, abortion contributes to that problem. For example, the CPP was enacted by legislation in 1965 during a time when each woman had approximately 3.5 children (see chart). The CPP funding model made economic sense at a time when the birth rate predicted a sufficient number of future workers would exist to pay taxes in support of the benefits to be received by pensioners.

The funding model no longer works however, because the numbers have changed dramatically and the worker-to-pensioner ratio has plummeted. After the legalization of abortion and widespread contraception, Canada’s birth rate fell dramatically to just 1.58 children per woman as of 2011. Combined with longer average life-spans in old age, this resulted in a precipitous decline in the ratio of Canadian workers (who pay taxes) to pensioners (who receive CPP benefits). That ratio has been decimated since 1965.  In 1985 for example, Canada had almost 5-1/2 workers per pensioner. Currently there are barely more than 3 workers per pensioner.  By 2025 that is projected to be approximately 2.5 workers per pensioner. See this chart for example. That’s unsustainable.

Rather than “benefiting everyone” abortion is contributing to national bankruptcy and tearing a gaping hole in our social safety nets, including our imploding health care system. So, wrong again Joyce. Abortion hurts everyone!

Conclusion - I’m sorry to disagree

This January 28th, instead of celebrating 25 years of “responsible abortion care” in Canada, I’ll be lamenting the 2.5 million lost children since 1988 and the profound poverty visited upon our country by abortion since decriminalization in 1969.

Jack Fonseca is project manager for Campaign Life Coalition. Follow him on Twitter @JackFonsec. This piece is reprinted from CampaignLifeCoalition.com with permission.

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Ben Johnson Ben Johnson Follow Ben

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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