Tag Archives: obergfell v. hodges

Friends of Padre Steve’s World

I am a historian, and as such I look to history to understand people and current events. As such I am looking at the upcoming Supreme Court hearing in the case of Obergefell v. Hodges and thinking about it in relation to the Dred Scott Ruling of 1856.

This case deals with Gay marriage and the attempts of mainly Christian Conservatives to roll back the rights of those in the LBGTQ community to marry. Not only does they seek to prevent Gay marriage where it is not permitted but they seek to roll back those rights in states where the majority of voters through their legislators have passed those laws, and negate the traditional understanding of reciprocity between states concerning recognition of marriages performed in other states. As such it is a major case with big ramifications. 

On one hand if the justices rule in favor of those challenging the laws which allow gays to marry it will strike at the very heart of the meaning of the Declaration of Independence’s  central message that “all men are created equal.” Likewise such a ruling will return LBGTQ citizens to a second class status in which though they pay taxes and serve their country in many ways, and contribute to the positive good of all Americans, they will not enjoy the liberties of other citizens and can be denied basic services, or even the right to be at the bedside of a dying spouse. 

Though Gay marriage harms no one its opponents have announced that it will have apocalyptic consequences and will result in a massive persecution of Christians who oppose it. The legal arguments espoused by the opponents of Gay marriage are similar to those who supported the both the protection and expansion of slavery in the 1850s, and those who after emancipation and the Thirteenth Amendment enacted “Black” or “Jim Crow” laws. Sadly, if Gay marriage is upheld by the Court, a number of States are pledging to enact similar laws regarding Gays, and some states are already doing so. 

From more recent Court rulings it appears that the Gay marriage will be upheld, but you never know with the Roberts Court. Several members, Justices Thomas, Alito and Scalia have long histories of opposing and ruling against the rights of gays.  

Today I am looking at the effects of the Dred Scott decision of the Supreme Court. The decision was one of the worst, if not the worst ever enacted by the Supreme Court. The consequences were chilling as it proclaimed that Blacks were a “subordinate and inferior class of beings” who had no rights. It also in combination with the Compromise of 1850 opened territories to slavery and put Blacks in Free States at jeopardy of being re-enslaved.

I ask my readers to imagine what it will be like for Gays if the Supreme Court rules against Gay marriage. I will probably post something tomorrow about the use of the “Black laws” and “Jim Crow” and relate that to the “Gay laws” that are being enacted in many states and locales, laws which serve no purpose than to deprive citizens of basic rights, services and freedoms enjoyed by other citizens. 

This article is an edited part of one of the chapters of my Gettysburg/ Civil War text. I have worked it so that here it is a stand alone article. So please read this and share, it is important and none of us can be complacent.

Peace,

Padre Steve+

As the 1850s wore on, the divisions over slavery became deeper and voices of moderation retreated. The trigger for the worsening of the division was the political battle regarding the expansion of slavery; even the status of free blacks in the north who were previously slaves, over whom their owners asserted their ownership. Southerners considered the network to help fugitive slaves escape to non-slave states, called the Underground Railroad “an affront to the slaveholders pride” and “anyone who helped a man or woman escape bondage was simply a thief” who had robbed them of their property and livelihood, as an “adult field hand could cost as much as $2000, the equivalent of a substantial house.” (1)

In 1856 the Supreme Court, dominated by southern Democrats ruled in favor of southern views in the Dred Scott decision, one pillar of which gave slavery the right to expand by denying to Congress the power to prohibit slavery in Federal territories. Taney’s ruling in the case insisted that “Neither the Declaration of Independence nor the Constitution had been intended to apply to blacks he said. Blacks were “so far inferior that they had no rights which the white man was bound to respect.” Taney did not stop with this but he declared the Missouri Compromise itself unconstitutional for “Congress had exceeded its authority when it forbade slavery in the territories by such legislation as the Missouri Compromise, for slaves were private property protected by the Constitution.” (2)

The decision was momentous, but the judicial fiat of Taney and his court majority was a disaster for the American people. It solved nothing and further divided the nation:

“In the South, for instance, it encouraged southern rights advocates to believe that their utmost demands were legitimatized by constitutional sanction and, therefore, to stiffen their insistence upon their “rights.” In the North, on the other hand, it strengthened a conviction that an aggressive slavocracy was conspiring to impose slavery upon the nation, and that any effort to reach an accommodation with such aggressors was futile. While strengthening the extremists, it cut the ground from under the moderates.” (3)

The decision in the case is frightening when one looks upon its tenor and implications. The majority opinion which was written by Chief Justice Roger Taney was chilling, not only in its views of race, but the fact that blacks were perpetually property without the rights of citizens. Taney wrote:

“Can a negro, whose ancestors were imported into this country, sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?…It is absolutely certain that the African race were not included under the name of citizens of a state…and that they were not included, and were not intended to be included, under the word “citizens” in the Constitution, and therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remain subject to their authority, and had no rights or privileges but those who held the power and the Government might choose to grant them” (4)

The effect of the ruling on individuals and the states was far reaching. “No territorial government in any federally administered territory had the authority to alter the status of a white citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as punishment for some crime.” (5) Free slaves were no longer safe, even in Free States, from the possibility of being returned to slavery, because they were considered property. The tens of thousands of free blacks in the South were effectively stripped of citizenship, and became vulnerable to either expulsion or re-enslavement, something that the legislatures in Virginia, North Carolina and Missouri debated in 1858. Likewise the decision “cast doubt on the free status of every African American regardless of residence.” (6) 

But the decision had been influenced by President-Elect James Buchanan’s secret intervention in the Supreme Court deliberations two weeks before his inauguration. Buchanan hoped by working with the Justices that he would save the Union from breaking apart by appeasing slave owners and catering to their agenda. “The president-elect wanted to know not only when, but if the Court would save the new administration and the Union from the issue of slavery in the territories. Would the judges thankfully declare the explosive subject out of bounds, for everyone who exerted federal power? The shattering question need never bother President Buchanan.” (7) In his inaugural address he attempted to camouflage his intervention and “declared that the Court’s decision, whatever it turned out to be, would settle the slavery issue forever.” (8) 

But Buchanan was mistaken. The case made the situation even more volatile as it impaired “the power of Congress- a power which had remained intact to this time- to occupy the middle ground.” (9)  Taney’s decision held that Congress “never had the right to limit slavery’s expansion, and that the Missouri Compromise had been null and void on the day of its formulation.” (10)

The Court’s decision “that a free negro was not a citizen and the decision that Congress could not exclude slavery from the territories were intensely repugnant to many people in the free states” (11)  and it ignited a firestorm in the north where Republicans now led by Abraham Lincoln, decried the decision and southerners basked in their judicial victory. Southerners were exultant, the Richmond Enquirer wrote that the Court had destroyed “the foundation of the theory upon which their warfare has been waged against the institutions of the South.” (12) Northerners now quite rightly feared that an activist court would rule to deny their states the right to forbid slavery. As early as 1854 Lincoln posed the idea that the Declaration of Independence was “the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” (13) 

After the Dred Scott decision Lincoln warned that the Declaration was being cheapened and diluted, he remained insistent on this point, he noted:

“Our Declaration of Independence was held sacred by all, and thought to include all” Lincoln declared, “but now, to aid in making the bondage of the Negro universal and eternal, it is assaulted, and sneered at, and construed, and hawked at, and torn, till, its framers could ride from their graves, they could not recognize it at all.” (14)

Lincoln attacked the decision noting that Taney “insists at great length that negroes were no part of the people who made, or for whom made, the declaration of Independence or the Constitution.” But as Doris Kearns Goodwin notes “in at least five states, black voters action on the ratification of the Constitution and were among the “We the People” by whom the Constitution was ordained and established.” Lincoln acknowledged that the founders “did not declare all men equal in all respects. They did not mean to say that all were equal in color, size, intellect, moral developments, or social capacity.” But they dis declare all men “equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’…They meant simply to declare the right, so the enforcement of it might follow as circumstances permit.” (15)

Not only that, Lincoln asked the logical question regarding Taney’s judicial activism. Lincoln and other Republican leaders “noted that all slavery needed was one more Dred Scott decision that a state could not bar slavery and the objective of Slave Power to nationalize slavery would be accomplished.” (16) How long would it be, asked Abraham Lincoln, before the Court took the next logical step and ruled explicitly that the:

“Constitution of the United States does not permit a state to exclude slavery from its limits?” How far off was the day when “we shall lie down pleasantly thinking that the people of Missouri are on the verge of making their State free; and shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State?” (17)

Lincoln discussed the ramification of the ruling for blacks, both slave and free:

“to aid in making the bondage of the Negro universal and eternal….All the powers of the earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house;…One after another they have closed the heavy doors upon him…and they stand musing as to what invention, in all the dominions of mind and matter, can be produced the impossibility of his escape more complete than it is.” (18)

Frederick Douglass noted that “Judge Taney can do many things…but he cannot…change the essential nature of things – making evil good, and good, evil.” (19)

Lincoln was not wrong in his assessment of the potential effects of the Dred Scott decision on Free States. State courts in free-states made decisions on the basis of Dred Scott that bode ill for blacks and cheered slave owners. In newly admitted California the state supreme court ominously “upheld a slaveowner’s right to retain his property contrary to the state’s constitution.” (20)

A similar decision by a New York Court was being used by slave-states to bring that issue to the Taney Court following Dred Scott. “In 1852 a New York judge upheld the freedom of eight slaves who had left their Virginia owner while in New York City on their way to Texas.” (21) The Dred Scott decision brought that case, Lemon v. The People back to the fore and “Virginia decided to take the case to the highest New York court (which upheld the law in 1860) and would have undoubtedly appealed it to Taney’s Supreme Court had not secession intervened.” (22) Even non-Republican parties such as the Democrats could see the writing on the wall. The national publication of the Democratic Party, the Washington Union “announced that the clear implication of the Dred Scott decision was that all state laws prohibiting a citizen from another state, either permanently or temporarily, were unconstitutional.” (23)

Notes

1. Goodheart, Adam. Moses’ Last Exodus in The New York Times: Disunion, 106 Articles from the New York Times Opinionator: Modern Historians Revisit and Reconsider the Civil War from Lincoln’s Election to the Emancipation Proclamation Edited by Ted Widmer, Black Dog and Leventhal Publishers, New York 2013 p.15

2.  Goodwin, Doris Kearns Team of Rivals: The Political Genius of Abraham Lincoln Simon and Schuster, New York 2005 p. 189

3.  Potter, David M. The Impending Crisis: America before the Civil War 1848-1861 completed and edited by Don E. Fehrenbacher Harper Collins Publishers, New York 1976Ibid. Potter The Impending Crisis p.291

4. Guelzo Allen C. Fateful Lightening: A New History of the Civil War Era and Reconstruction Oxford University Press, Oxford and New York 2012 p.91

5. Ibid. Guelzo Fateful Lightening pp.91-92

6. Goldfield, David America Aflame: How the Civil War Created a Nation Bloomsbury Press, New York, London New Delhi and Sidney 2011p.142

7. Freehling, William. The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 Oxford University Press, Oxford and New York 2007 p.115

8. Ibid. Freehling, The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 p.109

9. Ibid. Potter The Impending Crisis p.291

10. Levine, Bruce Half Slave and Half Free: The Roots of the Civil War Revised Edition, Hill and Wang, a division of Farrar, Strauss and Giroux, New York 1992 and 1995   p.210

11. Ibid. Potter The Impending Crisis p.279

12. Ibid. Goodwin Team of Rivals p. 190

13.  Catton, William and Bruce, Two Roads to Sumter: Abraham Lincoln, Jefferson Davis and the March to Civil War McGraw Hill Book Company New York 1963, Phoenix Press edition London p.139

14. Ibid. Guelzo Fateful Lightening p.93

15. Ibid. Goodwin Team of Rivals p. 190

16. Gienapp, William The Republican Party and Slave Power in The Civil War and Reconstruction Documents and Essays Third Edition edited by Michael Perman and Amy Murrell Taylor Wadsworth Cengage Learning Boston MA 2011 p.81

17. Ibid. Levine Half Slave and Half Free p.211

18. Ibid. Catton Two Roads to Sumter p.139

19. Ibid. Goodwin Team of Rivals p. 190

20. Ibid. Gienapp The Republican Party and Slave Power p.81

21. McPherson, James. The Battle Cry of Freedom: The Civil War Era Oxford University Press, Oxford and New York 1988 p.181

22. Ibid. McPherson The Battle Cry of Freedom p.181

23. Ibid. Gienapp The Republican Party and Slave Power p.82