The Dred Scott Case of 2013: Gay Marriage

Dred Scott

      Dred Scott, acting under the conditions of the Missouri Compromise--stating, in short, that new states shall be free states--undertook to seek his freedom, having been taken by his owner to a free state, and therein kept as a slave.  Under the law, he did not see how he could be kept in an enslaved condition in a state that did not recognize slavery. 

     You see, Stephen Douglas had proposed the Kansas-Nebraska Act, which would give all states the power to decide the "slavery question" for themselves, and saw it through passage.  This negated the federal jurisdiction over slavery, and ushered in what we know of as "States Rights."  Abraham Lincoln, debating Douglas ferociously, condemned this act, believing the Founding Fathers, unable to get the Constitution ratified if they pushed for abolition; for, they knew they would lose the support of Georgia and South Carolina, and there would be no new constitution for a nacient democracy, such as ours was in its infancy, to see growth unto and through the ages, did all they could to provide for slavery's eventual end.  Then, Lincoln argued that Douglas had undermined the strategy of the Founding Fathers, and was assuring the growth and maintenance of slavery unto perpetuity.  This was an unbearble position for our country, Lincoln argued, and would not repair divisions that threatened our very being as a country:  Lincoln proclaimed, "A House divided against itself cannot stand..."

We are still a House divided.  Those against full and free equality for gay people relegate the right to marry to states.  States Rights.  Just as with "the question of slavery."  A gay couple, legally married in New York goes to Alabama, let's say.  Are they not still married?  Well, no, actually, as Alabama does not allow gay marriage, the marriage is not legal there, and no rights attendant to married couples shall be applied to that gay couple.  It's Dred Scott and his freedom all over again.  It is the question of, "Who is a rightful citizen of this country?", all over again. And, while marriage has been the domain of states, about 1100 federal laws, including benefits, family leave, next of kin status, a reprieve from estate taxes when a spouse dies, and the extension of Social Security benefits upon death are all part and parcel of those laws.  The 1996 Defense of Marriage  Act (DOMA), signed into law by President Clinton, is very much a federal case, making marriage, gay or otherwise, very much a federal case. Today, our Supreme Court hears arguments that will determine if we have grown up yet, if we can get our House together, and if we will lead the world as the greatest democracy on earth.  We will have to wait and see...

    

     On March 6, 1857, the Supreme Court handed down its decision on Dred Scott v. Sanford.  What follows is an excerpt of the Supreme Court decision:

The plaintiff [Dred Scott]... was, with his wife and children, held as slaves by the defendant [Sanford], in the State of Missouri; and he brought this action in the Circuit Court of the United States for [Missouri], to assert the title of himself and his family to freedom.
The declaration is . . . that he and the defendant are citizens of different States; that... he is a citizen of Missouri, and the defendant a citizen of New York.

...


The question is simply this: Can a negro, whose ancestors were imported into this country, and 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, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution....

The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who ... form the sovereignty, and who hold the power and conduct the Government through their representatives.... The question before us is, whether the class of persons described in the plea in abatement [people of African ancestry] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can 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 remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. [Italics and underling are mine].

  

            So, here we are, 156 years after the Dred Scott decision was handed down.  It was overturned after the 13^th and 14^th Amendments were ratified  (1865 and 1868, respectively).  The 13^th Amendment abolished slavery.  The 14^th Amendment granted all rights and privileges of citizenship to the once enslaved.  And, today, we are debating whether or not gay people ought to have the full and fair rights and privileges of citizenship in the world’s greatest democracy?  Yes, we are. 

            Let’s face it:  we love to hate.  We seem to need some group or other to hate.  Now, the question is, do we have the guts, the grace to stop hatred and discrimination for this, I want to say last bastion of hatred, but I know we will find others, so, do we?  Do we have the guts to “give” gay people the right to pursue, “…life, liberty, and the pursuit of happiness…” that our Declaration of  Independence set forth as the absolute conditions of democratic citizenry?  We can only hope.

  

Because, this guy:

Antonin Scalia

And, this guy:

Clarence Thomas

                                                                                                (ironic, no?)

And, this guy:

Samuel Alito

And, most times, this guy:

…get to decide, according to their various predilections, what will and will not be Constitutional in our republic…Just as Roger Taney’s court of 1857, that got it so right (yeah), in the Dred Scott case.

‘Tis true, what old Ben Franklin told a woman, outside of the hot room where the Constitutional Convention had convened. 

She asked, and I paraphrase, “What kind of government have you bequeathed to us?”

Franklin answered, “A republic, madam, if you can keep it.”

To those of us who believe the full glory of this country has not been reached, but that we can get closer to it, we await the hearing today, and the Roberts’ court decision, with the wish that we can hold onto the hem of this republic, pull it close, embrace it firmly, and KEEP IT, for all generations to come.

And, let us never forget...