Earlier this week Alabama Chief Justice Roy Moore instructed Alabama probate judges to ignore the Supreme Court’s ruling that Alabama had to begin issuing marriage licenses to same-sex couples, effectively legalizing gay marriage in the state. In an epic 25-minute battle on CNN this morning, Moore justified his dissension by repeated reference to the 1857 Dred Scott v Sanford decision — long considered the worst ruling in Supreme Court history — as a precedent for justices refusing to comply with a clear mistake of the high court’s.
Moore didn’t pull Dred Scott out of a hat. As court decisions continue to enervate their position, the comparison has become an increasingly common rhetorical maneuver by religious conservatives. During a speech last summer Faith and Freedom Coalition Chair Ralph Reed linked the state and federal rulings overturning same-sex marriage bans to Dred Scott as an example of “judicial overreach,” then compared his movement’s losses to those absorbed by the abolitionist cause following the Scott decision:
“The battle looked like it was lost, but it really wasn’t. And that’s kind of like where we are right now.”
As Mediaite’s Tina Nguyen pointed out at the time, Reed neglected to mention it took a near-biblical war and three constitutional amendments to actually defeat slavery and undo the Court’s ruling.
Then-American Family Association leader Bryan Fischer more emphatically compared the two after the Supreme Court declined to hear appeals in multiple same-sex marriage cases last October, effectively legalizing the practice in a number of states:
“The nearest parallel we can find to what happened yesterday is the Court’s 1857 decision legitimizing the institution of slavery. In the Dred Scott case, the Supreme Court put its stamp of approval on a pernicious, degrading, decivilizing institution and gave it the patina of constitutional authority.”
“The Court duplicated its wrongheaded and grossly immoral Dred Scott ruling yesterday by imposing same-sex marriage on the entire country,” Fischer concluded, incorrectly: the Court effectively legalized the practice in eleven states within those appellate courts’ jurisdictions.
Matthew J. Franck backed up Fischer in the National Review last October, calling the Court’s refusal to hear the appeals “a slow-motion Dred Scott for the twenty-first century”:
“Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges. In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.”
The comparisons appear mostly meant to attack some of slavery’s irrevocable, headline-grabbing immorality to the issue of same-sex marriage, on which the public is rapidly liberalizing. It also establishes a rhetorical framework should the Supreme Court, which has since taken up the issue, overturn states’ same-sex marriage bans later this spring.
But as a legal comparison it’s absurd. Dred Scott denied rights to African Americans and limited the scope of the federal government to establish law in free territories, while the right’s nightmare scenario in which SCOTUS rules in favor of same-sex marriage would be a case of granting rights by invalidating state law. Ironically, the right wants a ruling much closer to Dred Scott in legal content.
[Image via CNN/screengrab]
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