Will Supreme Court's Marriage Decision Be Another Dred Scott Ruling?

As the U.S. Supreme Court prepares to consider whether to overturn the marriage laws of all the states—as some activist federal judges have already done in some of the states–conservatives are naturally calling for judicial restraint. We must warn the court against another exercise of “raw judicial power” like that handed down with its infamous 1973 Roe v. Wade ruling. That cruel and unjust ruling is viewed as illegitimate by tens of millions of Americans. Young people, especially, are turning against abortion-on-demand. We see this in every pro-life march. And this public outcry is being translated into a bumper crop of pro-life legislation bubbling up in state legislatures.

The lethal Roe v. Wade ruling did serious harm to the Supreme Court’s reputation. Now, the Court may once again overstep its authority. The justices are being asked not merely to redefine marriage, but to end it. That is because once marriage is no longer recognized as the union of one man and one woman, there is no legal or logical stopping point.

The radical theorists who signed on to www.beyondmarriage.org know this. That’s why they want to rip marriage from its traditional place in society and replace it with a fluid and ever-changing set of relationships. These radicals say in their “Beyond Marriage” manifesto that any number of consenting adults should have legal custody of any number of children.

I believe the Court may be headed for more than a Roe II ruling. It is also headed for another Dred Scott opinion. That 1857 ruling of the Supreme Court said it was legal to take slaves from slave states into free territories and the slaves would remain slaves.

This Supreme Court ruling caused an uproar in the country and endangered the rights of Americans in the free states. It spurred the growth of the new anti-slavery party, the Republicans. It brought Abraham Lincoln new prominence in the state of Illinois and the nation.

When Chief Justice Roger B. Taney wrote his Dred Scott opinion, he falsified U.S. history. He tried to argue that Negroes were never a part of the political community that had ratified the Constitution. Thus, Taney maintained, black Americans were excluded from the famous words of the Constitution’s Preamble: “We the People” (We see echoes of Taney’s flawed reasoning in President Obama’s bitter complaint that he could not have entered the front door of the Constitutional Convention.)

No, Lincoln said. He quoted Mr. Justice Curtis’ dissent in Dred Scott. Black Americans were indeed a part of the political community that authorized the Constitution. Blacks were voters in five of the original thirteen states that voted to ratify the Constitution. Known then as free Negroes, these Americans, Lincoln maintained, “in proportion to their numbers had the same part in making the Constitution that white people had.”

President Lincoln and many others knew the so-called 3/5 compromise was more than a political equation, they knew it was an affront to the

“Laws of Nature and Nature’s God”.

Lincoln protested against the injustice of the Dred Scott ruling, to be sure. But he also challenged the factual basis of this deeply flawed ruling.

President Obama went to Selma, Alabama recently to commemorate the massive 1965 demonstration there led by Dr. Martin Luther King, Jr. That demonstration demanded voting rights for Black Americans. We should remember Selma and the “Bloody Sunday” that was necessary to achieve the too-long-denied equal voting rights for all our citizens.

Today, rogue federal judges are engaged in the most massive case of voter suppression we have seen since the days of Jim Crow! Across the country, but especially in the South, black Americans joined other citizens in voting to affirm true marriage. They helped place protections for natural marriage in their state constitutions. In Alabama, an astonishing 81% voted for marriage. This may have been the highest vote of blacks and whites united on any political issue in the state’s history.

All of that is being negated by unelected judges who arrogate to themselves the right to dismiss the votes of hundreds of thousands of black, white, Hispanic, Asian, and American Indian voters who in state after state went to the polls to defend marriage.

Nor is this just a Southern issue. In Wisconsin in 2006—a banner year for Rep. Nancy Pelosi and her fellow progressives—fully 59% of Badger State voters affirmed true marriage. In that Northern state, that home of Progressivism, black voters and other minorities provided the winning margin for marriage.

This is what the Supreme Court threatens in its latest entry into legislating from the bench. If the Court overturns marriage, it will not only further de-legitimize itself as an institution, it will gravely damage American society. And it will undermine the “consent of the governed”—the only basis for just laws.

Ken Blackwell is a senior fellow at the Family Research Council and the American Civil Rights Union, and on the board of the Becket Fund for Religious Liberty.