Friday, November 6, 2015

The dumb, irrelevant Lincoln debate

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People are debating whether or not Abraham Lincoln advocated resistance to the Dred Scott decision by the Supreme Court of the United States. This theme has been floating around since June 26 when the Supreme Court ruled in Obergefell v. Hodges that gays had a constitutional right to marry. The idea is that if Lincoln could resist Dred Scott then objectors have a right to resist Obergefell.

In early October, 64 academics, apparently coordinated by Robert George, organized an effort to attempt to nullify Obergefell. They made the claim (from selective observation) that Lincoln called for resistance to Dred Scott. Then David Blankenhorn weighed in with other selective observation that George and his friends had it all wrong. Matthew Franck took to the National Review to refute Blankenhorn. So did Hadley Arkes (a respected scholar at Amherst) in Witherpoon Institute's blog. Austin Ruse piled on today (with considerable confusion) at Crisis Magazine.

All of this blather is irrelevant.

Regardless of whether or not Lincoln advocated resistance to Dred Scott it amounts to nullification — an attempt to invalidate a law or court decision that one does not like. Nullification is unlawful and unconstitutional. We recognize that the Supreme Court is the final interpreter of the constitution — not Robert George and certainly not the Catholic Church.

More importantly, Obergefell is not comparable to Dred Scott.

In Dred Scott the Court determined that human beings could be property and that African-Americans were not eligible for US citizenship. According to the opinion:
It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
People objected to Dred Scott because the institution of slavery was not only evil but anathema to what American stood for. Real people – brought here involuntarily or their descendants – were harmed because they were denied equal protection and due process. Eventually these would be enshrined in the 14th Amendment as civil rights.

Litigation regarding same-sex marriage goes back almost 15 years if your start with Goodridge v. Department of Public Health in Massachusetts. In all that time in hundreds of arguments opponents of same-sex marriage have been unable to introduce a demonstrable harm caused by same-sex marriage. Even after more than a decade of marriage equality in Massachusetts opponents cannot offer a tangible objection to same-sex marriage. Their parade of horribles never seems to materialize.

There is nothing objective about the opposition of Robert George and his friends. Same-sex marriage offends their religious beliefs which is why they do not like it.

It really doesn't matter whether or not Lincoln advocated, or even engaged in, resistance to Dred Scott. Dred Scott stripped protections from a minority group and made them unequal causing them considerable harm. In contrast, Obergefell provides a minority group with Equal Protection and Due Process while harming no one. Comparing one to the other is simply absurd.

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