The Witherspoon Institute, for those you not familiar with this illustrious organization, is a virulently anti-gay organization founded by Robert George, also the founder of the anti-gay National Organization for Marriage (NOM). Their blog is called, “Public Discourse,” but don’t go there for the discourse, because like most NOM properties, comments aren’t permitted.
Michael Stokes Paulsen has penned a screed comparing marriage equality to slavery. In it, he makes the claim that the Dred Scott decision held that a right to own slave property, conferred by the laws of a slave state, bound the federal government, in administering federal territories that had not yet become states. Federal law could not ban slavery in the territories, for that would unfairly and unconstitutionally deprive slave-owners of a benefit they had possessed under state law, and thus deny them “due process of law.”
According to Paulsen, “In legal form and substance, the decisions in Windsor and Dred Scott are surprisingly parallel. Windsor involved a same-sex marriage that was recognized by the state of New York but not recognized by the federal government due to the Defense of Marriage Act (DOMA). The Court held that DOMA denied “due process of law” because it withheld federal recognition to a state-law legal status. That is exactly the same thing the Court did in Dred Scott. Instead of marriage, Dred Scott involved the status of slavery, which was recognized by the state of Missouri, but not by federal law in federal territory.”
He goes on to claim, “In both Dredd Scott and Windsor, the Court’s legal analysis was transparently result-oriented: the justices wanted a particular result, and manipulated the law to reach the outcome they thought preferable as a social-policy matter. In both cases, the majority’s “reasoning” wanders aimlessly before finally settling into the same oft-discredited judicial invention of “substantive due process”
Well of course the court was “results-oriented. They wanted a result NOT like Dred Scott. Also, the Windsor case was decided largely on 14th Amendment grounds, which did not exist at the time of Dred Scott ruling. In fact, the 14th was passed largely to avoid another Dred Scott ruling.