One central theme in the Obergefell dissents is that a proper
understanding of history should have foreclosed a judicial ruling that same-sex
couples have a constitutional right to be married. Chief Justice Roberts maintains that marriage
has been defined solely as a relationship between one man and one woman for all
time. Other aspects of marriage, he
insists, are superstructural and can easily be discarded. He also claims that the justices in finding a
right to same-sex marriage in the due process clause of the Fifth/Fourteenth
Amendment are repeating the error the justices made in Dred Scott v. Sandford when they found a right to bring slaves into
American territories in the due process clause of the Fifth Amendment. Both claims do not withstand historical
scrutiny.
Until the twentieth century, marriage was an institution
that converted two persons into one legal person. Blackstone’s Commentaries declare, “by
marriage, the husband and wife are one person in law; that is, the very being
or legal existence of the woman is suspended during the marriage." The Lawes Resolution of Womens Rights (1632),
the first treatise on that subject, similarly declared, “Though by mere
conjunction which is between man and wife, . . . they be by intention and wise
fiction of law, one person.” This unity
was as central to the conception of marriage as the notion that a marriage was
between one man and one women. Those who
claimed in the nineteenth century that married women had a right to own property were appropriately accused
of challenging the definition of marriage in their times.
The Chief Justice also misstates history when claiming that Dred Scott was the first instance of
substantive due process in the history of the Supreme Court. Bloomer
v. McQuewan (1852), a patent case, enjoys that honor. More to the point, as a generation of conservative
and liberal legal historians have pointed out, state courts before the Civil
War commonly employed substantive due process in numerous contexts. Both pro-slavery and anti-slavery advocates
endorsed substantive due process.
Proslavery advocates insisted that laws banning slavery in the territories unconstitutionally took property without due process.
Samuel Chase and other antislavery advocates insisted that laws
permitting slavery in the territories unconstitutionally took liberty without
due process. So, I guess, the Chief
Justice is repeating the error of Stephen Douglas who thought people could ban
slavery in the territories.