Would Lincoln Oppose Gay Marriage?

Was it Barney Frank who said that two vs. three people in a marriage was a quantifiable distinction for marriage, unlike the difference between a female wife and a male "wife"?   This is the logic:  Let's change slightly(?) the definition of marriage to be about two people and forget the common law roots of a marriage contract between the two distinct parties with distinct obligations.  Still two people, so not really that weird, they say.

Same-sex marriage will lead to polygamy?  Pshaw!  No, we want to keep marriage just as it is, between two people.  Completely orthodox.  The only people who want more than one spouse are weird Mormon perverts, and we don't care about them.  

Oh, so you don't care about their marriage rights.  I see. I guess they don't have all that Hollywood money (and Hollywood propaganda) to advance their cause.  You don't want them undermining society and complicating our laws with their weirdo lifestyles, eh.  "Those who deny freedom to others deserve it not for themselves."

Given Lincoln's strong backing of his party's anti-polygamy platform, it seems unlikely that he would have supported same-sex marriage.  (No, I'm not going to even get into the whole "Lincoln Was Gay" theory.)  Nobody made the argument then that polygamy would lead to same-sex marriage, because same-sex marriage was still universally considered a contradiction in terms, whereas polygamy was making a matter of making more commitments than the common law stated could be made in good faith.  Well, you may say, he was a man of his times in the Victorian age.

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The National Republican Party's two moral planks:  anti-slavery and anti-polygamy.  (Both referred to as twin "relics of barbarism.")  It was all about legislating morality.  Did someone say that DOMA was the first intrusion of the federal government into marital policy?  Lincoln helped pass laws legalize confiscation of money from private bank accounts in the Utah territory as well as the anti-bigamy laws about which he purportedly told Brigham Young that these laws would not be executed on his people if they did not support the Confederacy.

Lincoln and his party very much believed in keeping marriage following its traditional common law roots.  The common law inherited from the British tradition, not the Bible, is what makes marriage law expect a limited number of marital commitments.

Given that, in superficial terms, the anti-polygamy stance was socially conservative* in the sense of preserving social values, while the anti-slavery issue was, for the South, a non-conservative* issue if conservative is , it would see that these issues have little in common other than determining the national morality through centralized federal power.  (*John J. Ray questions "the old equation of conservatism with a love of the status quo and a dislike of change and new arrangements." I avoid using "progressive" here to describe social change since this has nothing to do with the platform of the progressive movement, which would arise a few decades later, and the co-opting by liberal progressivism is incidental.)

In moderating his opinion on racial equality, Lincoln appealed to the following maxim, "A universal feeling, whether well- or ill-founded, can not be safely disregarded."  This intuition is largely behind our rules against pedophilia (well-founded in my opinion).  A splendid aphorism, though it doesn't itself explain Lincoln's political philosophy; and it could be that Lincoln's anti-bigamy fervor could have been more to sell himself better as a social conservative for those who would paint him as a radical.  For Spielberg, this would merely make Lincoln a shrewd politician.

In general, I don't think it makes any sense to talk about gay rights as a "civil rights" issue.  Comparing the issue of interracial marriage (brought to a head in Loving v. Virginia) to the issue of same-sex marriage is kind of an affront to polygamists (but who cares how those "perverts" feel).  It is the polygamist community that has been (and is) in danger of being brought up on criminal charges for cohabitation — not just for entering more than on marriage contract, not just for performing a "plural marriage" ceremony, but for living with more that one person.

A man/woman can have multiple partners, even extra-marital contacts, without being a felon, but a man can't live with more than one paramour and take care of them as domestic partners.  This exists in the state of Utah because of the federal government's involvement with Utah's state charter.   Meanwhile, a gay man can live with two or three "roommates" and do whatever he likes with them.  But the gay man is considered oppressed because if he has a ceremony with one of them, while it isn't a criminal offense, the society around him doesn't have to acknowledge it on a par with the institution as it's existed for millenia, whereas the polygamist has actually committed a criminal offense by living how he/she wants to live.  The polygamists aren't asking for society to treat it on a par with monogamous marriage (yet...); they would consider it fair if their lifestyle were decriminalized on a level with gay domestic partnership.

The decision in Hernandez v. Robles makes this comment on the difference between so-called interracial marriage (in reality, there really is no interracial marriage because race isn't real) and same-sex marriage:

But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.* 

Now on the one hand, we have polygamy which, while not ubiquitous, has been a common variant of the universal marriage tradition.  The Occidental tradition as it is reflected in the British common law we inherited does not recognize polygamy as something in particular to uphold and celebrate as a society, though this doesn't mean that society can't tolerate it, provided that states and communities don't have to recognize it just because it has been recognized in another state.  As long as a state is free to tolerate and not uphold, there is no slippery slope, and there is a means of the society determining its own values rather than the federal government determining what its values should be.  Polygamy has social precedent in societies of many kinds and has religious precedent in the Judaeo-Christian cultural roots of Western civilization.

Same-sex marriage does not have this precedent in either social or religious cultural roots.  It's not even close to being as much a candidate as an extension of the Western tradition of marriage the way that "plural marriage" is.  The "heterosexist" tradition is arguably universal because it mirrors survival-relevant instincts in our sexual dimorphism.  (Whew!)  Yet, polygamy has been much more criminalized.

If a polygamist could obtain a kind of civil union with his subsequent wives, a sort of civil agreement that would protect states' interests vis-a-vis the Full Faith and Credit clause, he and his wives would probably be pleased as punch.  And most states would be all right with making federal a legal framework for protecting each state's self-determination — which is precisely what DOMA attempted to do.

Which would be much more "progressive" than any view Mr. Lincoln held (or claimed to hold, at least).

Hollywood Questions the Honesty of Honest Abe: Spielberg's Lincoln

Neither the Left nor the Right are very critical of Mr. Lincoln; rather they both tend to lionize and adopt him as their very own predecessor.  Although the Republican party is right to point out that they have a civil rights legacy that extends all the way back to 1860 from the present time, neither the Democrats nor the GOP are Lincoln's party and Lincoln's legacy is complicated.

Spielberg's Lincoln is a surprise in some ways.  It more or less confronts some of Pres. Lincoln's arbitrariness when it comes to the Constitution, though it doesn't much get into specifics about how Lincoln believes he's fulfilling his oath to protect the Constitution as he engages in sophistry to circumvent the restrictions of the Constitution.  The timing of this is not that surprising since we have a President that is so slippery about his Executive Powers that even Rachel Maddow has reacted with incredulity at his rationalizations ("construct[ing] a legal regime" for prolonged detention being a kind of "ad hoc legal strateg[y]")  ― and yet gets a lot of public approval after running on a ticket to reform executive licentiousness.  Well, Lincoln in the film admits to assuming powers he wasn't sure were given him by the Constitution he swore to uphold, and he explains one of his "ad hoc legal strategies."

 If there is one overriding theme to Spielberg's Lincoln, it is that when the cause is righteous enough, there is no amount of fraud and corruption that is unwarranted.  This is good news to the Left, because they've known for a long time their causes are just that good.  I'm not embellishing about the movie at all.  According to Spielberg's narrative, a movie that ironically has Abe rebuking the Confederate leaders for not having faith in the democratic process, Abe's idea of democracy in action included among other things: (1) lying to Congress and the American people about the purposes and effects of policies, (2) dealing in bad faith with a diplomatic peace mission from the Confederacy, (3) deliberately misleading Congress about diplomatic relations with the South, (4) buying votes through cronyism and cash payouts, etc.   The movie presents all of these things as noble and grand, because they were done for a noble cause.

 Lesson:

In Good Faith: Lincoln and the Constitution

"I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so."
  ~ Lincoln

The issues surrounding the War Between The States and President Lincoln's legacy are complex.  Much more complex than the treatment it receives.  I think there is a special irony around the popular view of the subject:  "The Northern states waged a war over moral legislation (Uncle Tom's Cabin being an important piece of agitational literature in the matter) and forced immoral states to accept a moral view.  This is generally the reason for which Northern soldiers fought and were willing to die."   This view is reinforced by the sneering response to the question of whether slavery was the key issue of the Civil War.  To heap irony upon irony, the sneering is generally more pronounced if the pshawer emphatically believes that any legitimate results from the Iraq War were secondary to the real reason (generally involving oil).  And furthermore, that regardless of whatever good might have, it was unconscionable for the public to be misled about WMDs.  The argument for the War in so many words, supported by Congress, was not made in good faith.

Let's leave alone the unwillingness of most left-leaning citizens to question why progressives in the U.S. and in Europe are much more concerned about the freedom of Sharia-embracing, anti-Israel aggressors in the Middle East than they are about people of all faiths that are suffering widespread torture and oppression in central Africa from horrific regimes and sadistic "armies."

Let's instead consider what the Tenth Amendment means and what the ratification of the Constitution implied.  The Constitution represented, one would hope, a good faith attempt to form a "more perfect union" between sovereign political entities, or "states," by establishing a federal entity that could protect their autonomy from foreign enemies, from domestic threats to what is called "republican government" in our Constitution, and from the federal government itself (as argued in The Federalist Papers).  On that last threat, the Constitution contained many key concessions to the Anti-Federalists (who would later be the Democratic-Republicans).  The Bill of Rights, especially the 2nd and 10th Amendments, being the lynchpin addressing these concerns.  An armed populace (call "militia" in the 2nd Amendment) and recurring Congressional approval to maintain federal armed forces were the means of guaranteeing that 10th Amendment federalism was maintainable.

Now, considering that there was a lot of Northern disapproval for slavery from the beginning, and considering that the maintenance of slavery was very important to the Southern states, does anyone think that it is particularly likely that the Southern states would have ratified the Constitution if they thought that any of the follwing were the case:  (1) that the Constitution guaranteed personal liberty, (2) that federal power could trump a state's right to determine the criteria for personal liberty without a voluntary Amendment process, or (3) that if the federal government were to try to override a state's political interest at any time, the state would not be able to secede from what was ostensibly a voluntary union?

These ideas, I believe, are things that are easy to hold as people that grew up with states seeming more like enormous counties rather than federated nation-states, who grew up with a post-Civil War Pledge to "one nation . . . indivisible."  

A lot of people would point to the good that came out of the Civil War.  On this and several other issues, however, I think this is partly a red herring.  If one argues that an act has to be legitimate because some good came out of it, this is essentially an "ends justifies the means" argument.  As popular as this is among people that celebrate end-runs around Constitution, I believe we should base legitimacy on other grounds.

A contract that is made to exploit some meaning or phrase that one of the parties is misled about is not a contract that is made in good faith.  If you have to mislead people about an issue in order to get your way, does that make you a savvy statesman or a corrupt politician?   Lincoln stated several times that he was not waging war to end slavery.  However, today most of the arguments validating Lincoln's war base it on this overriding moral high ground.  This implies that he misled everyone, North and South, as to his real motives in waging war.  A full two years into the War which wasn't expected to last so long and with so much attrition, the Emancipation Proclamation effectively acted as a desperate extension to the policy of economically devastating the South as to insure its submission.  It did not outlaw slavery -- it simply eliminated all slave property claims only in the seceding states.  Lincoln had given up on any amicable resolution and resolved to the utter devastation of the South in order to meet his overriding concern that the Union be "perpetual."  The Union is a roach motel: you can check in but you can't check out.  Or the Hotel California.

So Lincoln claimed, contrary to his apologists Left and Right today, that he wasn't waging the war to help  the slaves.  The implication would be that this was a Noble Lie perpetrated in order to wage the war and liberate the slaves.  Indeed, maybe this pragmatic ends-justifies-the-means ethic is held by the current President in his temporary abandonment of gay marriage in order to gain the Presidency.   One would think that this particular Noble Lie extends back to 1787, in which the South was tricked into thinking that the states were truly sovereign, that the Union was voluntary, and that there would be no coercion by federal forces that would resemble the coercions by the British government in the 1760s-1770s.  The South was tricked into agreeing to the Northern ideal of personal liberty and there was no escape from it in 1861.

[The authors of the Declaration] meant simply to declare the [natural] right [to personal liberty], so that the enforcement of it might follow as fast as circumstances should permit.
  ~ Lincoln   

The popular feeling about the Civil War, that its eventual result in the 13th Amendment is its justification and in turn its justification must have been the impetus of the war, is almost unshakable.  It is so pervasive that one can't question the whole affair without being accused of being pro-slavery.

But here among many things that Lincoln purportedly tricked the American public about are these:  He claimed to not support the social (as opposed to political) equality of blacks:

I have no purpose to introduce political and social equality between the white and the black races...
  ~  First Lincoln-Douglas Debate 

And again

Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not.

And again

Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. . . . In some respects she certainly is not my equal; . . .

Lincoln doesn't sound so much like a "classical liberal" (certainly not like a modern liberal or modern conservative) in these statements, and certainly sounds like he would be accepting of the "separate but equal" policies promulgated in the 1950s.  It will be said, of course, that he should be understood as a "progressive civil libertarian" in context of the times.

See also http://www.creators.com/opinion/walter-williams/parting-company.html