Lincoln on the Same-Sex Marriage Decision

Supporters of the Obergefell v Hodges decision have been declaring with nervous frequency that same-sex marriage is now “the law of the land.” The message is: The matter is closed, the conversation’s over. This is the future. Get used to it.

But this need not be the case. In his haste to get his social revolution on the road, Justice Anthony Kennedy forgot to hitch the cart of his agenda to the Constitutional horse. As a consequence, no one is obligated to get on board.

For at least the last half century, the Supreme Court has been willfully creative in its reading and application of the constitutional text. Roe v Wade is only the most infamous example. But Obergefell is an interpretive balloon disappearing into the blue beyond. Chief Justice John Roberts does not mince words:

If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

It is thus “indefensible as a matter of constitutional law.” The Court has dropped even the pretense of applying the words of the fundamental law, of allowing the people to govern themselves through the law they have consented to obey.

Justice Antonin Scalia, with characteristic flair, laments that, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He implies that with this decision, America, behind its elective processes for lesser offices like president and senator, has become an oligarchy, a form of tyranny. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Without that connection to civil law, and most fundamentally to the Constitution, the justices of the Supreme Court have no authority. Their authority does not proceed from any qualities they bring to their office -- wisdom, compassion, the common touch -- but strictly from the law they labor to interpret and apply. They speak for the law or they speak only as private citizens.

In 1857, Abraham Lincoln argued that some decisions of the court, like the notorious slave decision, Dred Scott v Sandford, carry less weight than others beyond their significance for the case at hand. A decision is more authoritative if it is not split but carries “the unanimous concurrence of the judges.” Whereas Dred Scott was a 7-2 vote, Obergefell could muster only five of the court’s nine votes. By contrast, when the high court decided the landmark segregation case, Brown vs Board of Education (1954), they so crafted the decision as to gain the assent of all nine justices in the interest of maximizing the force of their voice on the matter and minimizing social division in its wake. Not only does Obergefell speak only for the barest majority on the court, but in their dissent, written by the Chief Justice himself, the four justices of the minority express their objections in the strongest possible terms.

A decision is stronger again if is “in accordance with legal public expectation, and with the steady practice of the departments throughout our history,” and has been “affirmed and re-affirmed through a course of years,” i.e., if it has been repeatedly confirmed by subsequent decisions. None of this is true of Obergefell’s assertions. The sitting president announced his support for the cause only three years ago, six months before his re-election to a second term, and he was the first president to do so.

Conversely, the weight of a decision is diminished by obvious bias in the matter. In this case, two of the justices, Ruth Bader Ginsberg and Elena Kagan, have officiated at same-sex weddings. A decision also compromises itself insofar as it relies “on assumed historical [or scientific] facts which are not really true.” In this respect, Obergefell’s dependence on social science and psychology in place of legal reasoning reduces its authority.

In his sixth debate with Senator Stephen Douglas in 1858, Lincoln argued that though Dred Scott was legally binding as far as Mr. Scott was concerned, on account of the decision’s many weaknesses it carried no political weight, be it on Congress in making laws, on the president in the conduct of his administration, or on voters in the assessment they make of candidates for office. Lincoln restated this principle in his First Inaugural Address in 1861. He held that accepting every decision in a case between two parties as establishing irrevocably “the policy of the Government upon vital questions affecting the whole people” would be tantamount to relinquishing responsibility for self-government to “that eminent tribunal.” Decisions of revolutionary social import do not spring from a single case, as though by spontaneous generation, except for a subservient people.

The Taney court in 1857 needed a lesson in judicial restraint, humility under the law, and what it means for a free people to govern itself. The Kennedy majority needs the same lesson today. They need to face consequences for just making stuff up. If state and local governments -- what Reformation era political theorists called lesser magistrates who are equally responsible to God for defending the liberty of their people -- think the Supreme Court has ruled not from the law but from the private opinions of five of its members (as four of them including the Chief Justice says they did), then are they are under any obligation to comply? President Lincoln says no, and Chief Justice Roberts seems to imply the same.

D.C. Innes is Associate Professor of Politics at The King’s College, New York City and co-author of Left, Right, and Christ: Evangelical Faith in Politics.

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