Saturday, July 31

“Popular Sovereignty” and Marriage Equality

skepticOne of the more enlightened-sounding proposals aimed at resolving the question of marriage equality for sexual-orientation minorities is to allow each State in the Nation to decide the issue, either with a vote of the State legislature via initiative and referendum, where the State constitution permits such, or to allow each individual State’s legislature to decide the issue. This alternative appeals to the “democracy instinct” that is pretty much encoded into the Nation’s political DNA. But this perception is deceptive. We have seen this movie before, and its deeper implications are anything but friendly toward individual rights. The first time we saw the “let-the-States-decide” movie was in 1858 with the Lincoln-Douglas debates. All that is different, 1858 vs. now, is the specific matter at issue: slavery then vs. marriage equality now. But what was really at issue in both instances was much deeper, going to the “ontology” of human personhood.


In 1858, the year after the infamous Dred Scott v. Sandford decision of the Roger Brook Taney Supreme Court, Stephen Douglas, senior Senator from Illinois, and Abraham Lincoln, former one-term representative from that State, as part of their respective Senate campaigns, undertook an epic series of debates up and down the length and breadth of Illinois, each challenging the other on his solution to the burning slavery question that would finally eventuate in the Civil War. (In those days before the 17th Amendment, Senators were appointed by the State legislatures.  Sen. Douglas won. Mr. Lincoln lost. But Mr. Lincoln would go on to be elected President in 1860. South Carolina would secede from the Union a month later.) Sen. Douglas repeated his often-advocated proposal of “popular sovereignty”: let each State decide for itself whether that State will be slave or free. As Mr. Lincoln was quick to point out, Sen. Douglas’s proposal had already been ruled unconstitutional the previous year by the Supreme Court in the Dred Scott opinion. Thus “popular sovereignty” died a-borning. To understand the reasons for this, I refer you to the Dred Scott decision itself. Looming at least equally large at the time was the fact that the Taney Court, on the way to its decision, also declared unconstitutional the Kansas-Nebraska Act and the Compromise of 1850, both of which had the effect of quarantining slavery within States where slavery was already legal. With Dred Scott, the Taney Court “breached containment” and set the slavery virus loose in the Union as a whole.

Chief Justice Roger Brook Taney

Dred Scott has been vilified now for 158 years as the judicial equivalent of Pearl Harbor: “a date which will live in infamy”. Or maybe the 9/11 attacks. Justly so, in an obvious sense. Two years after Dred Scott, in 1859, John Brown would stage his abortive assault on the Federal arsenal at Harper’s Ferry; the Nation, both North and South, would quail before the prospect of a slave rebellion; Brown’s trial and execution would only succeed in making him a martyr and rendering the Civil War, already almost a certitude, literally inevitable. (“Things fall apart, the center cannot hold; / Mere anarchy is loosed upon the world” -- William Butler Yeats, "The Second Coming".) But if we take a step or two back and look at Dred Scott dispassionately, to the extent that is possible, what becomes clear is the question beneath the question.

Dred Scott

In that sense and to that extent, the decision of the Taney Court did the Nation a service in clarifying, if only in retrospect, what was really at stake. If Douglas’s proposal of “popular sovereignty” had been adopted and implemented, and if each State had voted on whether to be slave or free, what would the State really have been voting on? The State would have been voting on, not only the legal status of slavery within its borders, in fact, least of all on that, but on whether or not the “ontological” character of human beings – some human beings, anyway – was such that human beings were the kind of thing that could be owned. The real question at issue is whether or not slaves are human beings with human rights. The Court said “No”, of course, asserting that “[African slaves are] beings [note: not “human beings” but just “beings” – JRC] of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect”. Mr. Lincoln’s critique of “popular sovereignty,” which predates by several years his debates with Sen. Douglas, is predicated on his revulsion for placing slavery and freedom on an equal moral plane as Coke-or-Pepsi alternatives meriting equal consideration. In a speech in Peoria, IL, 1854, he asserted that “there can be [no] MORAL RIGHT in the enslaving of one man by another." (all-caps in original) In the last analysis, Sen. Douglas’s proposal to settle the slavery issue by “popular sovereignty” is just as much a negation of the human-ness of the slave as the Dred Scott decision itself. To subject human-ness to majority vote is to deny the existence of the very thing you are voting on. If slaves are human beings, there is nothing to vote on. Conversely, to insist on voting on whether a certain group has human rights is to deny the human-ness of that group. (In Kitchen v. Herbert, the decision that struck down Utah's gay-marriage ban, the US Court of Appeals for the 10th Circuit said "The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box".) Human beings have human rights. To affirm one is to affirm the other; to deny one is to deny the other. Period. End of discussion.

Well, as I said earlier, we have seen this movie before. Now we are seeing it again. Now the issue is not the “ontological” character of slaves, but the “ontological” character of sexual-orientation minorities. In particular, the question now is whether such minorities have a right to marry. At least, that is the “surface” question, corresponding to the choice Sen. Douglas proposed putting before the States. Now, before I go any farther, I want to reaffirm the all-important dual character of marriage: marriage as a civil contract, and marriage as a religious ordinance / sacrament. My remarks are confined entirely to the former aspect of marriage, i.e., marriage as a contract in civil law not essentially different from, say, a contract with Verizon for cell-phone service or with Bank of America for a mortgage loan. Within that context, we may ask “Is the right to enter into a (civil) contract a human right?” That question we can resoundingly answer “Not only ‘Yes’, but ‘Hell yes’”. In fact, during the opening years of the 20th century – the Lochner era – the Supreme Court’s “hell-yes” answer was so strong that very little progress could be made until the New Deal in terms of ameliorating employees’ working conditions: employees had entered into a contract with their employer that was so iron-clad that even Federal courts felt bound by constitutional prohibitions forbidding impairment of contracts. We are no longer in the “Lochner era”, of course, but the right to enter into contracts is still strong – be the contract a mortgage or a marriage …

… unless you are a sexual orientation minority …


In that case, some argue that an act of the legislature or the electorate … anyway, some kind of vote … is necessary. And even then, only with regard to the specific type of civil contract known as “marriage”. No one argues that a vote is necessary to “give” sexual-orientation minorities the right to contract with Verizon for cell-phone service. No one argues that a vote is necessary to “give” sexual-orientation minorities the right to get a mortgage. No one argues that a vote is necessary to “give” sexual-orientation minorities the right to contract with a gardening service to mow, mulch, and fertilize their lawns. Those are all civil contracts. But when you mention the civil contract known as “marriage”, suddenly some people are not willing to grant that right without some kind of prior plebiscitary permission. Why? I can think of two possible reasons:

o Marriage is a religious ceremony / sacrament nor normally granted to gay / lesbian people

But in that case, the State is clearly overstepping its “establishment”-clause boundaries by presuming to grant gay / lesbian people permission to participate in a religious activity. One may as well envision the State having a voice in whether a Catholic priest can celebrate Mass or whether a Buddhist sensei can chant the Diamond Sutra.  But I think a more likely reason is …

o Gay / Lesbian / LGBTQIA people are not … well … not … well … not “like us” … any more than black slaves were “like us” in Sen. Douglas’s mind in 1858, and so require permission to exercise what the rest of us – those who are “like us” – consider a human birthright: the right to contract (civil) marriage

 In other words, to be brutally honest, gay / lesbian / LGBTQIA people are not … quite … human and so need their human-ness, and therefore their human rights, legislatively validated. At least, that seems to be the subtext of the 21st-century version of the "popular sovereignty" argument.  Which, as in the case of black slaves in the 1850s, means those rights do not exist because their presumptive possessors are not … quite … fully human. Indeed, that is the “question-behind-the-question” in both cases: are slaves and LGBTQIA people fully human? Furthermore, as it was with slaves and “popular sovereignty”, so it is with sexual-orientation minorities: the ostensible necessity of voting in order to validate rights annihilates those rights. The act of voting vitiates that which is voted on.

The Declaration of Independence asserts that human rights are “unalienable”: we cannot give our rights away. Nor can we “give” them to others. They are not ours to give. And if we try to give them to others, we only prove that we do not believe in them.

James R. Cowles

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