Friday, November 06, 2015

Justice Abraham Lincoln's Opinion in Obergefell v. Hodges

A long list of prominent people have signed a "Statement Calling for Constitutional Resistance to Obergefell v. Hodges," which has been supported by the American Principles Project of the Witherspoon Institute at Princeton University.

They call for citizens and public officeholders to recognize that the decision in Obergefell is "anti-constitutional and illegitimate," and therefore that they should refuse to accept this decision as settled law, and they should recognize the authority of states to define marriage as the union of husband and wife, thus excluding same-sex unions.

To justify their stand, they quote twice from Abraham Lincoln's remarks about his resistance to the decision in Dred Scott v. Sandford (1857), which declared that black slaves could not have the rights of citizens, because they were property, and that it was unconstitutional for the Congress to deny the right of slave masters to take their slave property into the Western territories.

Remarkably, the signers of this statement do not ask the question of how Lincoln might have decided the Obergefell case.  But in citing Lincoln as supporting their position, they imply that Lincoln would agree that this decision that same-sex marriage is a constitutional right is "anti-constitutional and illegitimate." 

I am not sure about that, because I can imagine that Lincoln would have voted with the majority in this case, arguing that extending the right to marriage to same-sex couples would conform to his understanding of the principles of the Declaration of Independence.  As he said in his speech on the Dred Scott decision, the Declaration declares all men equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness."  The signers of the Declaration did not assert that all would soon enjoy that equality, Lincoln explained, but they did mean "to declare the right, so that the enforcement of it might follow as fast as circumstances should permit."  They meant to set up "a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere."

Much of the history of constitutional law over the past 150 years can be seen as constantly approximating that "standard maxim" of equal liberty for all "as fast as circumstances should permit."  Over a hundred years after Lincoln's death, the equal right to marriage for interracial couples was recognized as a constitutional right in 1967 in Loving v. Virginia.  It took a century for the circumstances to change to allow this, because the racial bigotry supporting the anti-miscegenation laws was too strong to challenge.  It then took almost another fifty years before the circumstances changed to make it possible to extend the right to marriage to same-sex couples, because it took that long to overcome the irrational prejudices against gay and lesbian people.

Some people might object that Lincoln clearly would not have agreed with the decision in Loving, because he openly supported the laws against interracial marriage.  But as I have indicated in my recent post on Lincoln's speech in Charleston, he was careful in his use of ambiguous language.  He said: "I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people."  To say that he is not nor ever has been in favor of this does not say that he never will favor this in the future.  Indeed, by the end of the Civil War, he recommended that the right to vote should be given to emancipated slaves.

Lincoln also indicated in his Charleston speech that the civil and political rights of blacks depended upon state legislation.  With the passage of the Civil War amendments--the Thirteenth, Fourteenth, and Fifteenth--the circumstances were changed so that the states could no longer deny the natural rights affirmed by the Declaration of Independence and protected by the Constitution.  So if Lincoln were on the Supreme Court today, he could look to the Fourteenth Amendment--particularly, the Privileges or Immunities Clause, the Due Process of Law Clause, and the Equal Protection Clause--to decide the Obergefell case. 

As a member of the Court today, Lincoln could have agreed with Justice Kennedy that "the nature of injustice is that we may not always see it in our own times" (11).  And so it was not seen until 1967 that the right to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men," and thus to deny this right to interracial couples is unjust.  In this way, as Justice Kennedy indicated, the Supreme Court "has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged" (20).

Lincoln saw the principles of the Declaration of Independence as teaching that each human being owns himself, has a "natural right to himself," has a natural right to pursue his happiness, and is "naturally entitled to do as he pleases with himself and the fruit of his labor, so far as it in no wise interferes with any other man's rights" (LA, 1:301, 327, 449; 2:589-590).  Similarly, Justice Kennedy in his Obergefell decision argues that same-sex marriage can be rightly protected as individual liberty as long as it poses no risk of harm to anyone (26-27).

Against this, Justice Roberts asserts that this harm principle of liberty is a matter of moral philosophy not of law (21-22).  Unlike Lincoln, Roberts does not see the moral philosophy of the Declaration of Independence as the "apple of gold" framed within the Constitution as the "picture of silver," so that the Declaration provides the "philosophical cause" for the American regime, which is the principle of "liberty for all" (CW, 4:168-169).  Roberts is a legal positivist and moral relativist like Stephen Douglas, who denies any appeal to the moral philosophy of the Declaration as a guide to interpreting the Constitution.

For Roberts and the other three dissenters in Obergefell, the only rights protected by the Constitution are those specifically enumerated in the text or those "implied fundamental rights" that are rooted in "the history and tradition of our people" (22).  And therefore there is no constitutional right to same-sex marriage, because this right is neither specifically enumerated in the Constitution nor recognized by "history and tradition."  Thus, Roberts ignores the implication in the Constitution--particularly in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment--that government is to secure all of the unenumerated rights necessary for "the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety" (the words of James Madison in his speech to the House on June 8, 1789).

As I have said in some previous posts, the dispute over the Obergefell case ultimately becomes a dispute over an empirical question as to whether legalizing same-sex marriage will harm anyone.  Will this weaken opposite-sex marriage?  Will this harm children?  The defenders of the Obergefell decision say no to both questions.  The critics say yes to both questions.

As I have indicated in previous posts, there is something strange in the claims about what harms children.  It is asserted that there is a risk of harm whenever children are not under the care of both the biological mother and the biological father.  Consequently, children are equally at risk in households with a single heterosexual parent, with heterosexual stepparents, with adoptive heterosexual parents, and with homosexual couples.  If the purpose of a state's marriage law is to give marriage licenses only to couples whose children will not face elevated risks of harm, then the state should not give licenses to heterosexual couples setting up households with stepchildren or adopted children.  The state could make "covenant marriage" (like that established in Louisiana, Arkansas, and Arizona) the only form of legal marriage. (Oddly, the "Resistance Statement" identifies real marriage as "the covenantal partnership of one man and one woman," but it does not endorse "covenant marriage" law.)  If a state were to do this, there would be no irrational discrimination against same-sex couples that would violate Equal Protection, because many heterosexual couples would be denied marriage licenses for the same reason--the risk of harm to children--that same-sex couples were denied marriage licenses. 

As the "Resistance Statement" indicates, there is also another dispute here as to whether there are any constitutional means for resisting a controversial decision like Obergefell.  Justice Roberts and the other dissenters declare that once this decision is made, that stops all debate over the issue of legalizing same-sex marriage, which they regard as an attack on the right of the people to govern themselves through democratic politics.

But that is false, because the Constitution provides many avenues for challenging and overturning unpopular Supreme Court decisions like this one.  The Congress can impeach Supreme Court judges who have made decisions that are "anti-constitutional and illegitimate."  The Congress can legislate that the Supreme Court has no appellate jurisdiction over cases concerning same-sex marriage.  The President and the Senate can appoint new judges pledged to overturn Obergefell.  The Congress and the states can pass a constitutional amendment declaring that same-sex marriage is not a constitutional right. 

I am surprised that the "Resistance Statement" does not specifically mention all of these constitutional powers through which unpopular Supreme Court opinions can be reversed.  I am also surprised that the "Resistance Statement" does not criticize the dissenters in this case for assuming that once the majority of the Court decides a question, that becomes settled law that cannot be challenged by anyone outside the Court.

My prediction is that as it becomes evident that legalized same-sex marriage is not harmful to children or to heterosexual marriage, the resistance to Obergefell will fade away.  But in the meantime, the resisters can try to persuade us that the harm is great, and therefore that this decision must be reversed.

My previous posts on the Obergefell decision can be found here, here, here, here, here, here, here, here, here, here, and here.

My previous posts on homosexuality, intersexuality, and the argument of Robert George for "real marriage" can be found here, here, here, here, here., here, here, and here.


CJColucci said...

I doubt that the actual, historical Abraham Lincoln, or just about anyone else in his day, would have supported the majority in Obergfell because it would have been, to him or them, utterly unthinkable. Once it becomes thinkable, however, it is possible to think about it, and a Lincoln capable of thinking about it might well have come out the way you suggest. We both remember when a constitutional right to same-sex marriage was almost literally unthinkable. Social changes made it thinkable, and when we started to think about it, we had to start using standard legal reasoning. Once we were committed to using standard legal reasoning, the weaknesses of the anti-SSM arguments became apparent, which explains why pro-SSM decisions sound more like legal opinions than anti-SSM opinions do.
But it had to become thinkable before we could think about it.

Larry Arnhart said...

This is a good statement. I agree. You've expressed this thought better than I have.

What you've described is an evolutionary process in which social change emerges as a spontaneous order.

What I find fascinating here is how, as you say, this decision was utterly unthinkable only a few years ago, but once certain changes in our experience with homosexuality occurred, our opinions about homosexuals changed radically in a short time.

As you say, we are still using "standard legal reasoning" about the abstract concepts of liberty and equality, but we are discovering new concrete meanings for those concepts as they apply to marriage and homosexuals.

R.K. said...

The arguments you have made for same-sex marriage are Lamarckian, not Darwinian. I will elaborate in a later post.