Christopher H. Rosik, Ph.D.

Spitzer’s ‘retraction’ of his sexual orientation change study: what does it really mean?

Christopher H. Rosik, Ph.D.
By Christopher Rosik Ph.D.
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May 31, 2012 (NARTH.com) - A great deal of attention is currently being given to the recent “retraction” by Robert Spitzer, M.D., of his important study of sexual-orientation change (Spitzer, 2003a). The quotation marks around “retraction” are purposeful, for what has happened should not be characterized as a retraction. While this turn of events has now become a favorite talking point for those opposed to sexual orientation-change efforts (SOCE), the language of retraction reflects politically motivated speech rather than scientific analysis. What follows is intended to help those confused by Spitzer’s actions and the subsequent media feeding frenzy to understand what has really occurred. I have outlined below some key points that seem to have been lost in the partisan utilization of this turn of events.

1. Spitzer has not retracted his study. The proper term for what Spitzer has done is provided in the title to his recent letter of apology: He has reassessed his interpretation (Spitzer, 2012). It appears that he may have originally wished to retract the 2003 study, but the editor of the journal in which the study was published, Kenneth Zucker, Ph.D., denied this request. Zucker has been quoted regarding his exchange with Spitzer as observing:

You can retract data incorrectly analyzed; to do that, you publish an erratum. You can retract an article if the data were falsified-or the journal retracts it if the editor knows of it. As I understand it, he’s [Spitzer] just saying ten years later that he wants to retract his interpretation of the data. Well, we’d probably have to retract hundreds of scientific papers with regard to interpretation, and we don’t do that. (Dreger, 2012)

What Zucker is essentially saying is that there is nothing in the science of the study that warrants retraction, so all that is left for one to change is his interpretation of the findings, which is what Spitzer appears to have done.

2. Spitzer’s change of interpretation hinges on his new belief that reports of change in his research were not credible. Instead, he now asserts that participants’ accounts of change were “self-deception or outright lying” (Spitzer, 2012). In taking this position, Spitzer has aligned himself with original critics of the study. When the original study was published, peer commentaries about the study had been solicited and were published in the same issue. Among those who questioned the reliability of the self-reports of change were many familiar opponents of SOCE: A. Lee Beckstead, Helena Carlson, Kenneth Cohen, Ritch Savin-Williams, Gregory Herek, Bruce Rind, and Roger Worthington.

3. The case for the credibility of participants’ account of change still remains. Remember that nothing about the science of Spitzer’s research was flawed. Like all research pursuits, the methodology had limitations, but a reasonable case for accepting the validity of these accounts was made at the time, and still stands today. At the time his study was published, Spitzer (2003a) reported, “...there was a marked reduction on all change measures. This was not only on the three measures of overt behavior and sexual orientation self-identity…but also on the seven variables assessing sexual orientation itself” (p. 410). In addition, 119 of his sample of 200 participants reported achieving “Good Heterosexual Functioning,” which was defined in terms of increasing satisfaction in opposite sex sexual behaviors and decreased same-sex fantasy.

Among the peer commentaries that agreed with Spitzer’s original interpretation, Wakefield (2003) noted that, “...to assume without evidence that reports of changes must be deceptions begs the question of whether change sometimes occurs” (p. 457). Spitzer (2003b) himself responded to the critics by noting:

Therefore, the critics are correct in claiming that significant response bias could have been present but they certainly have not proved that it was present. They also did not point to anything in the study results that suggests response bias. I acknowledge that some response bias could certainly have occurred, but I find it hard to believe that it can explain all of the reported changes…Surely if bias were present, one would expect that subjects (as well as their spouses) would be motivated to give particularly glowing accounts of marital functioning. They did not. (p. 471)


It is curious that Spitzer’s (2012) apology seems to imply that he earlier claimed his research proved the efficacy of SOCE. As was understood at the time, the design of Spizter’s study ensured his research would not definitively prove that SOCE can be effective. Certainly it did not prove that all gays and lesbians can change their sexual orientation or that sexual orientation is simply a choice. The fact that some people inappropriately drew such conclusions appears to be a factor in Spitzer’s reassessment. Yet the fundamental interpretive question did and still does boil down to one of plausibility: Given the study limitations, is it plausible that some participants in SOCE reported actual change?

In spite of all the recent media hoopla, nothing has really changed regarding the interpretive choice one faces regarding the limitations of self-report in this study. Either all of the accounts across all of the measures of change across participant and spousal reports are self-deceptions and/or deliberate fabrications, or they suggest it is possible that some individuals actually do experience change in the dimensions of sexual orientation. Good people can disagree about which of these interpretive conclusions they favor, but assuredly it is not unscientific or unreasonable to continue to believe the study supports the plausibility of change.

4. There is an unspoken double standard in the reports of Spitzer’s reassessment. The probable influence of political and other non-scientific factors in how Spitzer’s reassessment is being portrayed can be seen in which interpretations of self-report data receive favored notoriety and which are relegated to unfavored exile. Yarhouse (2003) observed this lack of consistency at the time of the study:

Memory recall of this sort can be unreliable. To be fair, however, much of what we know about LGB experiences, including theories for the etiology of sexual orientation and studies of sexual identity development and synthesis, is based upon retrospective studies utilizing memory recall. Any time proponents of the biological hypothesis for the etiology of homosexuality cite the Bell et al. (1981) study they are referencing a study that utilized retrospective memory recall. The Shidlo and Schroeder (2002) study also relied upon memory recall and is subject to the same criticism. (p. 462).

Spitzer (2003b) had similar observations in defending his findings, implying that demand characteristics could have influenced the self-reports of participants in other related research:

This study had essentially the same design and a similar recruitment strategy of ex-gay subjects as in the Beckstead (2001) and Shidlo and Schroeder (2002) studies. This raises the question of why so very few of their subjects gave answers consistent with a change in sexual orientation whereas the majority of my subjects did. The possibility of researcher bias must be considered. (p. 471).


A triumphal embrace often accompanies self-report data that suggests harm from SOCE, the equivalence of gay and heterosexual parenting, and other foci that fit with the preferred narrative of gay activists. It is unfortunate but not surprising that reports of sexual-orientation change are subject to unrelenting skepticism while other self-report data such as that of Shidlo and Schroeder (2002) seem to be reified as universal fact even though they suffer from similar limitations. If Spitzer’s study is to be rejected for its use of self-report data, should not methodologically equivalent research against SOCE receive a similarly skeptical reception? While scientific fairness would seem to demand this, political interests clearly do not.

5. Personal and sociopolitical contexts may provide insights into Spitzer’s reassessment. I once spoke briefly with Dr. Spitzer by phone years ago following the publication of his research. He seemed to be a kind and compassionate man who exemplified the spirit of genuine scientific curiosity. No doubt he was grieved that some used his work to make unsupportable claims of SOCE efficacy and this may have resulted in unfulfilled expectations by some gay and lesbian consumers. Yet it is certainly possible that other needs beyond his concern for human welfare were at play in his apology.

It is hard to imagine the fall from professional grace that Spitzer took due to this study. In a very short period of time, his status within his profession changed from that of a heroic pioneer of gay rights to that of an unwitting mouthpiece for practitioners of SOCE, whom many of his colleagues deem morally reprehensible. Before and after the study was published, Spitzer confirmed that he was getting a high volume of hate mail and anger directed at him (Spitzer, 2003b; Vonholdt, 2000). A decade of being hammered by your friends, colleagues, and the gay community that once revered you would surely take a toll on any of us.

Spitzer currently suffers from Parkinson’s disease and is in the twilight of his life, which makes it understandable that he would reflect on what sort of legacy he wants to leave. Hero or villain, icon or pariah-which legacy would anyone prefer to have? I can not say for sure that these non-scientific considerations influenced Spitzer’s decision to “retract” his study, but I can say that it is hard for me to conceive how they would not. Spitzer likely knows infinitely more gay and lesbian persons than he does individuals who report change in sexual orientation. This may have made it difficult for him to see that in trying to atone for the harm gay men and lesbians in his professional network claimed resulted from the study, he simultaneously caused harm to participants in his study who experienced change and now are told they were deceived or lying. All of this serves to underscore how personal and subjective the practice of social scientific discourse can be when the subject matter is entangled in a major sociopolitical debate.

Conclusion
       
A purely scientific approach to the limitations of Spitzer’s research would be to conduct more rigorous outcome research, something that he along with others have been calling for all along (Spitzer, 2003a, 2003b; Jones, Rosik, Williams, & Byrd, 2010). Even the APA Task Force’s Report on Appropriate Therapeutic Responses to Sexual Orientation (American Psychological Association, 2009) issued a call for such studies to be undertaken. Unfortunately, the reality appears to be that the APA and other institutions in a position to fund and conduct outcome research on SOCE in conjunction with NARTH and other SOCE practitioners have no real interest in doing so. They have nothing to gain by such research, as outcomes unfavorable to SOCE would not meaningfully change their current skepticism, while outcomes favorable to SOCE would be a public relations and public policy disaster for them.

I doubt that Spitzer would “retract” his assessment of the likelihood that needed follow up studies would be conducted (Spitzer, 2003b):

Given the cost and complexity of such a study and the current view in the mental health professions of the benefits and risks of reorientation therapy, such a study is not going to happen in the near future. This is unfortunate because of the real questions raised, albeit admittedly not resolved, by this study (p. 472).


So instead of more and better research on SOCE, we find activists and their supporters in the media pouncing on a change of interpretation in an effort to preempt legitimate scientific debate. Nuance, context, and balanced analysis all be damned. What seems to be foremost is the use of Spitzer’s reassessment to bludgeon SOCE supporters into submission and silence. Is it really far-fetched to suspect science is being held hostage to political agendas here?

I sincerely hope that this brief analysis helps clarify what did and did not happen when Spitzer “retracted” his earlier study. No new scientific finding was discovered that discredited SOCE. No egregious methodological flaw was identified. The same arguments forwarded in favor or against the study a decade ago still stand. Legitimate debate about the study’s significance can and should still take place. Nothing has changed other than Spitzer has revised his earlier interpretation for what are likely to be a host of understandable but inherently non-scientific reasons. This is his right to do, but let no one tell you that in doing so he has discredited his research or alternative interpretations more favorable to those who report change in their same-sex attractions and behavior.

References

American Psychological Association (2009). Report of the APA task force on appropriate therapeutic responses to sexual orientation. Retrieved from http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf

Beckstead, A. L. (2001). Cures versus choice: Agendas in sexual reorientation therapy. Journal of Gay and Lesbian Psychotherapy, 5(3/4), 87-115.

Bell, A. P., Weinberg, M. S., & Hammersmith, S. K. (1981). Sexual preference: Its development in
men and women. Bloomington, IN: Indiana University Press.

Dreger, A. (2012, April 11). How to ex an “ex-gay” study. [Web log post]. Retrieved from http://psychologytoday.com/blog/fetishes-i-dont-get/201204/how-ex-ex-gay-study

Jones, S. L., Rosik, C. H., Williams, R. N., & Byrd, A. D. (2010). A Scientific, Conceptual, and Ethical Critique of the Report of the APA Task Force on Sexual Orientation. The General Psychologist, 45(2), 7-18. Retrieved from http://www.apa.org/divisions/div1/news/fall2010/Fall%202010%20TGP.pdf

Shidlo, A., & Schroeder, M. (2002). Changing sexual orientation: A consumers’ report. Professional Psychology: Research and Practice, 33, 249-259.

Spitzer, R. L. (2003a). Can some gay men and lesbians change their sexual orientation? 200 participants reporting a change from homosexual to heterosexual orientation. Archives of Sexual Behavior, 32(5), 403-417.

Spitzer, R. L. (2003b). Reply: Study results should not be dismissed and justify further research on the efficacy of sexual reorientation therapy. Archives of Sexual Behavior, 32(5), 469-472.

Spitzer, R. L. (2012). Spitzer reassesses his 2003 study of reparative therapy of homosexuality [Letter to the editor]. Archives of Sexual Behavior. Advance online publication. doi: 10.1007/s10508-012-9966-y

Wakefield, J. C. (2003). Sexual reorientation therapy: Is it ever ethical? Can it ever change sexual orientation? Archives of Sexual Behavior, 32(5), p. 457-459.

Vonholdt, C. R. (2001). Interview with Robert L. Spitzer: Homosexuality and the reality of change. Bulletin of the German Institute for Youth and Society, 1, 33-36. Retrieved from http://www.dijg.de/english/homosexuality-reality-of-change/

Yarhouse, M. A. (2003). How Spitzer’s study gives a voice to the disenfranchised within a minority group. Archives of Sexual Behavior, 32(5), 462-463.

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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)

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.

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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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