Wednesday, September 23, 2015

Dred Davis?

“Read it in the writing on the wall”

I confess to being rather tired of hearing too much about the extremely small minority of individuals actively resisting the Supreme Court’s marriage equality decision in Obergefell v. Hodges this summer.  But, to quote Justice Scalia’s acerbic opinion in the Court’s 1992 case Planned Parenthood v. Casey, “it is beyond human nature to leave unanswered” “a few of the more outrageous arguments” opposing marriage equality, specifically, the cluster of attempts to counter Obergefell that invoke the Supreme Court’s pre-Civil War decision in Dred Scott v. Sandford. 

Dred Scott was an enslaved man of African descent who sued for his freedom in federal court.

Schomburg Center for Research in Black Culture, Photographs and Prints Division, The New York Public Library. Dred Scott Retrieved from

Simplifying a bit, his basic contention was that because the man holding him enslaved had taken Scott with him to live in a federal territory in which Congress had prohibited slavery in the statute widely known as the Missouri Compromise, this acted to free Scott; that his continued enslavement therefor violated his legal rights; and that the federal court had jurisdiction over this lawsuit under the terms of Article III of the Constitution because Scott was a citizen of one state and Sanford who claimed ownership of Scott was a citizen of a different state.  In a 7-to-2 decision where each Justice wrote his own opinion, the Supreme Court ruled against Dred Scott. 

Chief Justice Roger Taney’s lead opinion became emblematic of the case, and it reasoned first that the federal courts had no jurisdiction because Dred Scott as a presumed descendant of enslaved Africans did not count as a citizen, because those who wrote and adopted the Constitution regarded such persons as so inferior they and their descendants could never be part of the body politic. This, constitutional scholar and now Princeton University president Christopher Eisgruber has suggested, may be the original “originalist” constitutional decision,* one insisting that the Constitution’s meaning must be strictly limited to what was intended or perhaps understood by those who framed it.  Second, Chief Justice Taney reasoned that Scott also lost on the merits because he was not made free by the sojourn to a free territory, because Congress lacked power to prohibit slavery in the territories; the territories had to have the same prerogatives as the states, and the states of course chose whether to be free states or slave states.  Taney also reasoned that not only did the federal Constitution contain no grant of power to Congress to forbid slavery in the territories, but that even if it did a law that freed a slave “merely” because a slaveholder took him or her into a free territory would deprive the slaveholder of property without due process of law.  Hence, the Missouri Compromise’s ban on slavery in specified federal territory was unconstitutional.

In his Obergefell dissent, Chief Justice Roberts argued that Justice Kennedy’s majority opinion was crucially like Taney’s ruling in Dred Scott.  Roberts did not argue that Obergefell was like Dred Scott in that both adopted originalist approaches to constitutional interpretation; that is not true of the Obergefell opinion and, to the contrary, Roberts’s dissent is fairly congenial toward originalism. Nor, given the factual context of Obergefell, could Roberts repeat the common anti-abortion analogy between Dred Scott and Roe v. Wade, that the opinions wrongly denied full legal status and constitutional protection of life and liberty to a dramatically powerless segment of the human population.  Nor was his criticism that they were similar cases in that it was as unjust to let same-sex couples marry as it was unjust to deny African Americans’ citizenship.  Fortunately few in the U.S. have expressly gone so far in their condemnations of Obergefell.

Rather, the Chief Justice’s invocation of Dred Scott rested on the same concerns about how to interpret the Constitution that made Justice Scalia apoplectic in Planned Parenthood v. Casey, where in 1992 a majority of Justices refused to overrule Roe v. Wade.  Like the Casey majority that protected a woman’s right to choose to terminate her pregnancy relied on the Due Process Clause, the Obergefell majority went astray in Roberts’s eyes in holding that the freedom to marry a person regardless of gender was a fundamental right protected by the Due Process Clause.  For Roberts, the actual right at issue, framed narrowly as a right to “same-sex marriage” – I am completely dismissing his laughable claim that the right the Obergefell plaintiffs were claiming was “a right to make a State change its definition of marriage” – was not protected by law throughout U.S. history and thus should not be protected by courts under due process. 

For Roberts, and I quote at some length: “The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford.… The Court relied on its own conception of liberty and property in doing so.… In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the ‘fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control’ the Constitution's meaning, ‘we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.’” So, Roberts objected to the majority’s holding the Due Process Clause to protect substantive rights unless it could show that the narrowly framed right to marry a person of the same sex was “‘objectively, deeply rooted in this Nation’s history and tradi­tion,’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’”

Brian Brown, head of the marriage inequality group the National Organization for Marriage (or NOM), also has used Dred Scott to criticize the Obergefell majority’s use of the Due Process Clause to protect same-sex couples’ access to civil marriage.  “In terms of its legal reasoning,” he wrote, “Obergefell v. Hodges[] is the Dred Scott decision of our time.  It is illegitimate and completing lacking in constitutional authority.  It is the product of unaccountable judges legislating from the bench, usurping the role of elected officials and voters and imposing a social policy on the nation because they think they know best.”

This version of the Dred Scott criticism of Obergefell, like Chief Justice Roberts’s, flatly ignored the great deal of precedent and doctrine with which the Obergefell majority opinion engaged.  Roberts and Brown may not have liked the majority’s interpretive approach, but it was well grounded in Supreme Court practice and far from lawless.  Ignoring this “Dred again” argument might thus be the appropriate response.  But it is not the only use of Dred Scott that people resisting marriage equality are making. 

Although the vast majority of those charged with issuing marriage licenses in the country are complying with the Constitution and Obergefell, there are a tiny number of persons like the over-exposed Rowan County Clerk Kim Davis who have refused to do so.  Some of Davis’s defenders have tried to justify her resistance by reference to President Lincoln’s example with respect to the Dred Scott decision.  Brian Brown of NOM wrote that “like Dred Scott, America need not accept [the Obergefell ruling] as the final word, the ‘law of the land’ or even a decision worthy of respect,” and he quoted President Lincoln’s first inaugural address: “‘if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … 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.’”  Similarly, Republican presidential candidate Mike Huckabee, defending Davis’s refusal to issue marriage licenses because of her religiously-justified belief that a same-sex couple cannot marry, claimed:  “Lincoln ignored the 1847 Dred Scott decision that said black people weren’t fully human.  It was a wrong decision.  And to say that we have to surrender to judicial supremacy is to do what Jefferson warned against, which is, in essence, surrender to judicial tyranny.”  And for Huckabee, ignoring odious Supreme court decisions is a patently appropriate response, a necessary response, because, he claims, “the Dred Scott decision … still remains to this day the law of the land.”

There is so much wrong with Huckabee’s Dred Scott defense of Kim Davis that it is hard to know where to start.  Let’s quickly set aside the fact that the case was decided in 1857, much closer to the start of the Civil War; Huckabee gets the date right elsewhere.  Let’s also set aside that Huckabee is apparently conflating the case with anti-abortion criticisms of Roe v. Wade, for, however disparaging it might have been, Dred Scott did not hold that black people were not fully human; it was about constitutional citizenship, not personhood.  Additionally, and this is harder to swallow, I realize, let’s set aside Huckabee’s profoundly ignorant claim that Dred Scott is the law of the land and so must be ignored.  The Supreme Court did not need to overrule that decision because, as Chief Justice Roberts pithily acknowledged in his Obergefell dissent, “Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox….”  The Thirteenth Amendment abolished slavery, the condition Mr. Scott unsuccessfully challenged, and the very first sentence of the Fourteenth Amendment guaranteed birthright citizenship to all regardless of race, thereby overruling the case’s primary, citizenship holding.

More fundamentally off-base as far as the Davis controversy goes, though, Huckabee is wrong to claim bluntly without qualification, repeatedly in multiple venues, that “Lincoln ignored” Dred Scott.  For the President took pains in his First Inaugural to note:  “nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit.”  Lincoln never acted as though Dred Scott was a free citizen.  Indeed, he even went so far as to say – something opponents of Obergefell conveniently overlook – that even as to non-parties, the Supreme Court’s constitutional decisions “are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.”

Let me be clear.  Kim Davis is one of the “parties to a suit” for access to civil marriage in Rowan County, Kentucky, and she was under a federal court order to issue licenses.  Her refusal to comply with that order while she was seeking its extremely unlikely reversal on appeal is thus in no way sanctioned by President Lincoln’s position on the permissibility of government officials who have not been bound by a court’s judgment not following Dred Scott.  Davis’s actions have been lawless, not in our constitutional order a lawful mode of resisting marriage equality.  And the American public sees it that way, with a new poll showing that almost two-thirds of respondents believe that Kim Davis should be required to issue marriage licenses to same-sex couples, and when asked more abstractly almost three-quarters of respondents believed in general that the obligation to treat everyone equally is more important than accommodating religious beliefs that conflict with the equality principle.

A constitutional amendment to override Obergefell would be a different matter from flat disregard of the decision, and it is another potential avenue of resistance to the Supreme Court’s constitutional interpretation there.  Dred Scott was overruled by two such amendments, the Thirteenth and Fourteenth.  Hypothetically, a Twenty-Eighth Amendment to the U.S. Constitution could be adopted to undo Obergefell.  There have already been calls for exactly that.  Recent Republican presidential candidate Scott Walker responded to what he sees as the wrong of Obergefell: “the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage.”  Republican presidential candidate Senator Ted Cruz takes the same position. Republican presidential candidate – anyone see a pattern here? – Rick Santorum one-ups them, espousing a federal constitutional amendment to limit marriage to couples with one man and one woman, echoing earlier anti-marriage equality proposals that would spawn a host of problems. Republican presidential candidate Mike Huckabee has agreed.  Indeed, the Republican Party Platform from 2012 calls for precisely such a marriage-defining amendment.  And of course the National Organization for Marriage says it will “[l]end support to other efforts to amend the constitution [sic] to repeal” Obergefell.

Not to be smug, but even without a crystal ball I am confident: It’s not happening, as Republican presidential candidates Jeb Bush and Sen. Lindsey Graham have recognized and so called for the Republican party to remove theanti-same-sex-marriage plank from its platform.  They understand that marriage for same-sex couples is not an issue that divides the people of the U.S. the way abortion has been. The country has been relatively close to evenly split over abortion, with fluctuations, since at least 1997.  Contrast marriage equality.  JulyGallup polling, about two weeks after the Obergefell decision, showed 58% of surveyed respondents supporting marriage equality (with only 40% opposing), not statistically lower than the numbers in May before the Court ruled.  Of equal importance, since Gallup started polling on the issue in 1996 support for marriage equality has been increasing, opposition has been decreasing, and support is highest among younger respondents, with more than three quarters of adults under 30 supportive in the July polling.  All indications are that opposition to marriage for same-sex couples is not simply a function of age, but rather of the time during which one grew up and formed early opinions. Younger people have difficulty understanding why so many have been hung up on keeping lesbigay people from marrying. And the younger people of today are the influential voters, legislators, and jurists of tomorrow. So perhaps this is an area where the Reverend Doctor Martin Luther King, Jr.’s observation rings true: “The arc of the moral universe is long, but it bends toward justice.”

* Christopher L. Eisgruber, “Dred Again: Originalism’s Forgotten Past,” Constitutional Commentary, Volume 10, Issue 1 (Winter 1993),

Monday, April 27, 2015

Fear and Loving in Washington

“And you and me are free to be you and me”

It is surprisingly quiet here outside the Supreme Court of the United States the day before the Court hears oral arguments in Obergefell v. Hodges and the other three marriage equality cases it is considering this term.  There are a few more protesters, defenders of the old order, than there were yesterday.  The lines, one for the general public and one for attorneys admitted to practice in the Supreme Court, are longer now than they were when I started waiting in the bar line yesterday.  And there are more reporters out covering the calm before the storm.

But the people who are present to be witnesses to history, whether they secure one of the coveted seats in the Supreme Court for the arguments or end up displaying support from the sidewalks outside the imposing marble columns and steps of our nation’s highest court, almost all appear to support full inclusion of same-sex couples and their families in U.S. civic life and to share a sense of hopeful anticipation.  Attitudes range from the guardedly optimistic to the giddily exuberant — “I know it’s not the most likely but I’m still hoping for a unanimous decision like Brown v. Aboard of Education!” one woman and attorney gushed.

Tenth or eleventh in the bar line (depending on when you asked the line coordinator), I am thrilled to be able to attend the arguments in these momentous cases.  Far more than resolving the short-term legal fate of same-sex couples and families in Michigan, Ohio, Kentucky, and Tennessee, the Supreme Court’s decision in Obergefell may make a profound declaration of the fundamental dignity and equality of lesbian, gay, and bisexual persons (of all genders) in the U.S. constitutional order, in every state and every city.  As a gay man who professionally studies constitutional and LGBT legal issues and has taught and written about them for years, it is a special honor and treat for me to meet some of the brave couples who have been suing in courts across the country.  Their wide-ranging efforts as much as anyone’s have been vital to the educational, legislative, and litigation work that has set the stage for tomorrow’s historic hearing.

I tend to use CruzLines for more legal analysis, and I will resume doing so.  (Double-teaching this semester, covering constitutional law not only at the USC Gould School of Law but also for my friends at the UCLA School of Law, has kept me from posting of late.)  But I could not let the more human aspects of this moment pass unmarked.  On the side of the plaintiffs are arguments based on constitutional text, principle, and history, as well as the undeniable power of love to open hearts and minds and transform a culture.  On the other side are largely, at base, arguments rooted in fear, sometimes understandable fear of the unknown, fear of change, as well as from some quarters a shameless loathing of lesbigay people, lesbigay relationships, indeed our very lives.  But experience does not support those amorphous fears; it disconfirms what Supreme Court precedent and the plaintiffs quoting it have dismissed as “undifferentiated fears,” and “a bare desire to harm a politically unpopular group” cannot justify discriminatory treatment of a group of persons under the Constitution.  It is time, it is past time, for the country to live up to its constitutional commitments.  
Love Must Win.

Saturday, January 17, 2015

Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.