Same Sex Marriage and Dred Scott

America is at a constitutional crossroads.  The federal courts are threatening radically to revise the family law of all fifty states.  There is no Constitutional justification for them to do so.  If we don't stop them the American experiment will be at an end.  We will lapse back into government by an insular aristocracy, exactly what we waged the Revolutionary War to escape.

Most observers now expect the Supreme Court to rule this year that the Constitution forbids states to define marriage as including only relationships between members of opposite sexes.  This forecast relies entirely on guesses about the mind, such as it is, of Justice Anthony Kennedy.  Guessing what's on Kennedy's mind isn't easy.

In United States v. Windsor Kennedy held that the federal government cannot define "marriage" as the word is used in federal statutes.  It has to accept whatever definition the states give that word. This conclusion led him to cast the deciding vote for striking down part of the Defense of Marriage Act (DOMA), which defines "marriage" for all federal purposes as including only opposite-sex relationships.

Kennedy offered no plausible rationale for the bizarre assertion that Congress isn't empowered to define a term it uses in its own statutes for it's own purposes.  We were left to suppose there is something special about marriage that makes it the exclusive province of the states.  Suddenly, in spite of the supremacy clause, we have reverse preemption.  States occupy the entire field of family law leaving no proper role for the federal government. 

This ruling left the law in a hopeless muddle.  There is no principled basis for concluding that the federal government can't distinguish between homosexual partners and married couples but state governments can.  Most lower courts derived from Kennedy's confusion the principle they wanted to derive.  One after another they found that state laws limiting marriage to couples of the opposite sex violate the Constitution because . . . equality or something.  None of them has ever articulated anything resembling a legal argument for this holding. 

It's a dramatic leap from Kennedy's notion that the federal government must accept state definitions of marriage to the proposition that states must accept the federal courts' definition of the term.  In fact, it's a stark contradiction.  The betting odds, however, are that Kennedy, always the shameless intellectual Gumby, is sufficiently flexible to overrule himself without apology or explanation.  

I still think it possible that Anthony Kennedy may lose his nerve and decline to do something so foolish and destructive.  Let's suppose, however, that he does the expected thing.  What then?

I don't know what would happen then and neither does anyone else.  It is quite clear, however, what should happen.  Republicans in both Washington and the state capitals should defy, resist and ultimately frustrate the Court's decision.  There is no reason whatever for anyone to treat a lawless Supreme Court ruling as authoritative.

The ruling most observers anticipate would certainly be lawless.  Any argument that states must treat homosexual alliances as equal to marriages is going to founder on the rocky reality that that those alliances are not and cannot be equal to genuine marriages. Our culture celebrates only one kind of sexual relationship, the only kind society has any use for.  We call it marriage. 

We celebrate marriage because it is the bedrock of civilization.  It binds fathers to mothers to create stable foundations for families. Families produce the next generation.  They are also primarily responsible for bringing the members of that generation up to honorable adulthood.  Without marriages and the families they generate, civilization would collapse and the human species would quickly become endangered.

If twenty percent of America's marriages ended tomorrow it would be a social catastrophe without precedent in the West at least since the Black Death.  If, by contrast, 100 per cent of American homosexuals resolved tomorrow to live solitary and celibate forevermore society would barely notice. Marriages are a social necessity.  Homosexual relationships are extraneous, at best.

No homosexual partners can ever fulfill the mission of a marriage. Members of the same sex can't produce children together.  They can, as leftists never tire of pointing out, adopt.  Sometimes, in the absence of a better alternative, adoption by same-sex partners may be in the best interests of a particular child.  But human beings crave close contact with both a mother and a father.  No two men can ever give a child a mother.  No two women can ever give a child a father.  Some homosexual partners raise children, but they never do so in the circumstances society, for very good reason, prefers.

The argument that the law should treat heterosexual and homosexual relationships as equal is absurd. It is challenging to think of illustrative analogies that are even more so, but I can't resist trying:  The government doesn't give veterans benefits to everyone who ever played in a high school band.  Band members have something in common with military personnel.  They march around in a uniform.  But high school bands don't perform the same function as the Marine Corps and their members don't earn the same benefits or respect as members of the Corps.  Reading the Constitution to require that the law be blind to the distinction between something essential and something extraneous is inane.

Unfortunately, that inanity has gotten popular with our legal elite.  A cadre of deranged jurists has decided that mothers don't matter, fathers don't matter, men and women are interchangeable and there is nothing special about marriage that states are entitled to recognize.  It's high time to talk about how to respond if the Supreme Court beclowns itself and joins this circus parade.  What to do when the Supreme Court vandalizes state law with a delusional ruling that has no basis in the Constitution?

Just say no.

It really is as simple as that.  There are only two reasons for anyone to obey the order of any court.  When the court order seems just and proper, or even arguably so, we obey because it seems to us the right thing to do.  We may also obey because, if we don't some, executive authority will send men with guns to force the issue.  A court order that is neither persuasive nor enforceable is meaningless and powerless.

An arbitrary, idiotic decree demanding that our law obliterate all distinction between homosexual partners and married couples would make no claim on anyone's conscience.  No rational person should feel duty bound to obey such a decree. 

Nor would any state official have to fear the consequences of disobedience, even while Barack Obama remains in office.  There is little the Obama administration can practically do to force states into sanctioning fraudulent marriages.  The president isn't going to declare martial law and deploy the Army to administer family law in recalcitrant states.  Even if he tried, the Army might well not cooperate.

Justice Kennedy's anticipated folly would be neither persuasive nor enforceable.  Why should any state official feel bound to give it effect?  Certainly they shouldn’t do so to vindicate the rule of law.  Officials must resist government by arbitrary decree precisely to preserve the rule of law.  They are sworn to uphold the law as they understand it, not to indulge Justice Kennedy's every irrational whim.  We can't have a free and self-governing society if we insist on slavish obedience to whatever unconstitutional commands spew from the Supreme Court.  The rule of law is not the same thing as the rule of lawyers who go to work in robes.

As a practical matter, saying no should begin with the Republican presidential campaign.  Memo to all potential candidates:  If you want to merit serious consideration announce that Windsor was wrongly decided, DOMA is good law and, as president, you will enforce it.  Don't stop there.  Make clear that your administration would take no steps to enforce any federal court order purporting to invalidate any state's laws relating to marriage.  Explicitly invite state officials to defy the courts.

Officials who decline the invitation won't be able to blame the courts for the corruption of their state's family law.  If they follow the courts, voters will know they did so by choice and can punish them for it at the next election.   

The Republican Party should fight the 2016 campaign, in part, on frustrating the judiciary's blatant distortion of the Constitution.  A stinging dissent from a conservative justice or justices pointing out the distortion and making the case for defiance could be very helpful in jumpstarting the resistance.  The leading role in this drama, however, has to be played by politicians.

Defiance would trigger a torrent of leftist outrage.  We would hear ad nauseam that that there is no precedent for it.  In fact, the GOP was founded to nullify a Supreme Court decision closely analogous to Windsor.  The 1860 presidential campaign was principally about whether the federal government would continue following that decision.  Abraham Lincoln's victory ensured that it wouldn't.

The case was Dred Scott v. Sandford, in which Chief Justice Taney proclaimed that the United States had no power to restrict slavery in federal territories.  This was almost as absurd as Justice Kennedy's pronouncement in Windsor that the federal government lacks the power to define the terms in its own statutes.  Frederick Douglass called Taney's opinion in Dred Scott an “open, glaring, and scandalous tissue of lies," a phrase that aptly describes Windsor and other recent “same-sex marriage" cases.  Anti-slavery activists feared that the Taney Court would extend the Dred Scott ruling and hold that states couldn't prohibit slavery within their own borders, just as the federal courts are now extending the ruling in Windsor.

Both Dred Scott and Windsor were foolish attempts to resolve contentious political issues by arbitrary judicial decree.  When judges invade politics in that fashion it is up to the politicians to defend their turf.  That's what happened with Dred Scott and slavery.  It is what should happen with Windsor and "same-sex marriage."

The organizers of the Republican Party were determined to nullify Dred Scott. The Party's 1860 platform called Taney's decision "a dangerous political heresy, at variance with the explicit provisions of" the Constitution.  In his first inaugural address, President Lincoln argued Congress had the power to restrict slavery in the territories and made it clear that the Supreme Court could not bind the government to the contrary view: 

"[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." 

Republicans governed as they had promised.  They defied the Supreme Court and banned slavery outright in all federal territories as the prelude to the Emancipation Proclamation and the 13th amendment.

Democrats howled about the rule of law when Republicans proposed to ignore Dred Scott, just as they will if a Republican president resumes enforcement of DOMA and nullifies any subsequent "same-sex marriage" nonsense that emerges from the Supreme Court.  The howling was futile.  Today the howling would be amplified many times by the media.  If, however, Republicans could just steel themselves to endure it, the noise would probably be just as futile in the 21st century as it was in the 19th.  

The Supreme Court, it turns out, isn't really supreme at all.  Popular mythology to the contrary notwithstanding, it does not get the final word on constitutional interpretation.  The people do, which is as it should be.  Judicial review has a role in our constitutional order.  Judicial supremacy doesn't.  When the Court oversteps its bounds it is up to elected officials to smack it down and up to the people to demand that they do so.

When the Court is contemptible, contempt of court becomes the duty of every citizen and the highest duty of every public official.

If you experience technical problems, please write to