What Does Marriage Equality Have to Do with Dred Scott?
“They can do same thing that Abraham Lincoln did about the Dred Scott decision of 1857,” Mike Huckabee, the former governor of Arkansas, said, speaking of what conservatives might do about Obergefell v. Hodges, the Supreme Court decision in favor of marriage equality. “He simply ignored the ruling and said, ‘That’s not correct.’ ” Huckabee wasn’t alone. Rick Santorum, who, like Huckabee, is running for President, said, “Just as they have in cases from Dred Scott to Plessy, the Court has an imperfect track record.” Peggy Noonan, the columnist, wrote, “This case is about much more than marriage and will go down in history alongside other appalling Supreme Court rulings, like Dred Scott and Roe.” And Roy Moore, the chief justice of Alabama, said, “In the Dred Scott case the Supreme Court ruled that blacks were property, not citizens of the U.S…. Were they right? Of course not.”
The comparison to marriage equality seems odd and forced, yet Chief Justice John Roberts also made it, in his dissent to the Obergefell decision. And even he wasn’t the first: the alarm about a new Dred Scott has been heard, from activists like Ralph Reed and in the columns of the National Review, at least since the Windsor decision did away with the Defense of Marriage Act, two years ago. What is going on here? What does Dred Scott really have to do with Obergefell?
In part, Dred Scott is simply being used to give Obergefell a bad name—as pure invective, another way to call the decision rotten and the Supreme Court deluded. This is low enough; Dred Scott is a truly degraded decision, in a way that no other of the Court, conservative or liberal, has since matched. And, in part, the analogy reflects the notion, held by some contemporary conservatives, that they are now the “real” victims of bigotry. Roberts disparages the Obergefell decision, but he also does something more subtle. His argument is that both Obergefell and Dred Scott are the results of caring too much about “substantive due process.” Due process is the guarantee, made in the Fifth and Fourteenth Amendments, that a person can’t be deprived “of life, liberty, or property, without due process of law”; “substantive” means that this guarantee is more than formalistic (or “procedural”). In Roberts’s view, Justice Roger Taney’s opinion for the majority in the Scott case and Justice Anthony Kennedy’s in Obergefell are of the same ilk. In the first, the Court found that slave owners couldn’t be deprived of slaves; in the second, it found that gays and lesbians can’t be denied marriage—but both, to Roberts, are cases of due process gone wild.
On his side, Roberts says, are history and the democratic process. “A State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational,” he writes, and adds a note of outrage:
The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
And who do same-sex couples think they are, going to the federal courts, when they should, in Roberts’s view, be politely organizing petition drives for referendums in their respective states? Kennedy’s decision means that they will put aside such projects and, with them, the opportunity to win “true acceptance,” as Roberts puts it, in a phrase of stunning condescension, “just when the winds of change were freshening at their backs.” ...