Preparing for Dred Scott

Yesterday's Walker decision against California's Proposition Eight has left many of us in California (supporters of traditional marriage that is) quite frustrated. The 2008 decision (determined from a state-wide election) to confirm the traditional meaning of marriage between a man and a woman has now been over-ruled. Judge Vaughn Walker's decision is based on his claim that denying marriage to gay and lesbian couples violates the 14th Amendment's equal protection and due process clauses. There is no question that this provincial decision by a biased judge will make its way to the Supreme Court. When it does, let's hope that sounder judgment prevails. It is no exaggeration to state that an unwise decision from our highest court may very well makes things worse than the Dred Scott decision did before the Civil War. Let me explain.

I am certainly no legal scholar, but the history of Dred Scott is not so difficult to understand. He was a slave that travelled quite a bit with his master through both free and slave states and free territories. While in free territories, he was recognized as a free man. After his master's death he sought to purchase his freedom with various degrees of success. Some court rulings granted his arguments, others did not. Finally his case came to the Supreme Court where Justice Taney ruled that Negroes were not citizen's of the United States and then reversed the Missouri Compromise (and its exclusion of slavery from northern Louisiana). It has been one of the worst decisions (if not the worst) in American legal history. By reversing the Missouri Compromise, Taney effectively gave expanding powers to the slave states against the northern states. Of course we know the outcome. It took the Civil War to reverse the decision.

Isn't it a bit fantastic, though, to believe that a mere decision about gay rights could be as significant as Dred Scott? Not really. Consider the following scenario:

Judge Walker's decision is upheld by the Supreme Court. Some weeks later a gay couple in a conservative state - say New Hampshire - decides to show up at the State Capitol and get their marriage license. Much to their surprise, the state refuses to grant them one. They might complain that their legal rights have been ignored but the bare reality of an overwhelming conservative majority of irate New Hampshire citizens might very well make it politically unwise for the state officials to acknowledge the Supreme Court's decision.

Then what happens? Uncle Sam might start withholding federal programs. New Hampshire might lose it's representation in Congress. Other forms of pressure would undoubtedly be found and exercised. Soon other states would decide to back New Hampshire and before we know it, there is a national crisis in the making.

Now you might argue that this sort of thing could never happen. Look at the Court's decision, for example, in Roe v. Wade where abortion was legalized. Certainly abortion is as divisive an issue as gay rights and yet nothing so drastic happened in its wake. But here is the main difference: Roe v. Wade was a decision that ultimately became enforceable at the level of an individual woman and her doctor. Even in conservative states, doctors were available to perform abortions when they were requested.

The issue over redefining marriage, on the other hand, will have to be handled at the state level. That's where marriage licenses are issued. It's also a place where tremendous amounts of political pressure can be applied either way. I think it is highly naive to imagine that an issue this divisive would fail to elicit extreme reactions from millions of Americans if this sort of scenario were to be played out.

This is a very serious issue indeed. Let us pray that the Supreme Court is wise enough to understand this. For the rest of us, it might not be a bad idea to rethink how dependant we should be on Washington.