Dred not, neither be afraid

Uncle Sam grabbing a wave, from CongressForKids.

Everybody's talking about former Boy Wonder Ralph Reed not comparing slavery to same-sex marriage, oh, not much:

“The battle looked like it was lost, but it really wasn’t,” Reed said of the immediate aftermath of the Dred Scott decision, which went on to embolden abolitionist activists. “And that’s kind of like where we are right now. Anybody heard lately that we’re losing the marriage issue? Anybody heard that argument? You notice some similarities? I’m not comparing slavery to same-sex marriage, OK? I’m just pointing out that when you have these fights, what’s interesting is that if you look at same-sex marriage, it’s now legal in 17 states....

“Only six of them, six out of those 17, six out of 50 states, had done it by referendum or by state legislature. In every other case, it was imposed by courts. Just like the courts had to impose Dred Scott. Because they couldn’t do it on the country because the country didn’t agree with it. The country, by the way, doesn’t agree with same-sex marriage.”

Among the many things wrong with this, there are a couple that I don't see much addressed:

1. The numbers are wrong, as Reed knows well and cheerfully acknowledges:

(Reed said he was not counting the states that have changed since last year’s Supreme Court case that struck down the Defense of Marriage Act.)

As of now, based on the rundown at Wikipedia, there are 19 states (plus the District of Columbia) in which issuing of marriage licenses to same-sex couples is routine. Of these, 13 (Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, plus D.C.), not six, altered their marriage statutes by referendum or legislative vote (Connecticut and Vermont following up on court decisions); in two states, Minnesota and New York, legislators acted to vacate a court decision against marriage equality; while only six (California, Massachusetts, New Jersey, New Mexico, Oregon, and Pennsylvania) have had marriage equality "foisted" on them by court action without cooperation from the voters or legislators.

Anybody who looks at the occasional poll will see without assistance that at least four or five of those last six could easily pass a bill, too, though three of them might have trouble overriding a (Republican) gubernatorial veto. As will eventually be the case with the states (Utah, Oklahoma, Virginia, Michigan, Idaho, Arkansas, Texas and Wisconsin) where a court ruling in favor of marriage equality is currently under appeal by an anti-equality state government. In fact, as lots of commenters have noted, the country does agree with same-sex marriage, in constantly increasing proportions.

So while the numerical part of Reed's statement may have been true exactly a year ago (I think he was probably counting wrong even on those terms), it is certainly not true today, and it's clearly getting less true than ever every single day. And in this sense the federal courts, far from dragging the country where it doesn't want to go, are actually riding the crest of an ineluctable wave.

Shorter Reed: I have some numbers here that, if they were true, which they aren't, might make a valid point. And what a devastating point, too! Lol.

(Not so many years ago, by the way, I was kind of dubious about marriage equality myself, not about the principle, but about the priority some Democrats wanted to give it: to me it seemed like an issue mainly for wealthy people, those who could afford the big wedding and B&B honeymoon that is beyond the reach of most working people, gay or straight, who are not getting married nowadays because they can't afford it. It seemed to me that focusing on this issue was distracting the party from economic issues—the inequality that is really behind the ongoing collapse of marriage as an institution, especially in those Red states where the conservative interests have decided to blame it on gay people—and alienating too many working-class voters. But I have really changed my mind. It is an issue of inequality, that's all, and that's what Democrats ought to be about. And after all the voters have been quicker than I would have expected to see it as an issue of basic fairness, and I have a feeling that even before that they could see the legislators as courageous, so it's been good for the party anyway. I still don't like Andrew Cuomo benefiting from it, though, because I don't think he's been courageous at all.)

Dred Scott's wife Harriet, from the Missouri Historical Society. Justice Roger Taney didn't think any substantive due process was owing to her, because the original wording of the Constitution didn't grant her any civil rights. Most Americans disagreed.

2. Reed is right, in a way, about Dred Scott, which I didn't realize.

The Supreme Court really did foist the opinion—that enslaved persons had no civil rights even in states where slavery was illegal—on the people. Public sentiment was against slavery and therefore would have been against the decision, except I guess in the nullificationist states'-rights states that were on the point of becoming the Confederacy, and even there it would have been a much closer call, obviously, if you included the enslaved population in your poll.

What Reed doesn't acknowledge is that Dred Scott is a deeply conservative decision in the Scalia sense, one that insists on originalism against the liberal concept of a Living Constitution, and in that sense the exact opposite of rulings in favor of marriage equality, with their deep respect for the spirit of the document spreading rights to people the Framers didn't explicitly put on their list. Chief Justice Taney wrote in words that Scalia and Thomas would totally concur with, and probably Roberts and Alito as well:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.

Scalia claims that Taney erred in using the doctrine of substantive due process in this opinion, but that's just a red herring. Scalia is retroactionary and wrong, since the doctrine didn't exist and would have applied as much to the rights of Dred Scott himself, and Mrs. Scott, as to his so-called "owner". Taney was an originalist after Scalia’s heart, whatever casuistry he might wish to use in order to deny it.

Via HawksLoveDoves at Kos.