Thursday, September 3, 2015

The Kentucky Clerk and Dred Scott

Kim Davis, the Rowan County (Kentucky) clerk of courts is denying marriage licenses to same-sex couples, doing so, as she has stated, on "God's authority."  Ms. Davis, whose deeply religious convictions oppose such marriages, is clearly in violation of the Supreme Court's landmark ruling in Obergefell v. Hodges whereby the constitutional right to same-sex marriage was affirmed based on the Fourteenth Amendment.

Ms. Davis's legal advisors have argued that, in fact, the decisions not to uphold Supreme Court rulings without supporting legislation has precedence in the famous Dred Scott case.

And, as a matter of fact, Davis's legal team has a point.

To review, Dred Scott, was a slave in the service of John Emerson, a member of the US military, who moved from Missouri (a slave state) to Illinois and Wisconsin (free states) in 1834.  Though Emerson eventually returned to Missouri, Scott maintained that his residence in a free state had freed him from slavery bonds.  The case finally worked its way up to the Supreme Court.  In 1857, Chief Justice Roger Taney, writing for a 7-2 majority, ruled that Scott had no standing to sue in a federal court since people of African descent (slaves) were constitutionally not citizens of the United States. He concluded that the Declaration of Independence was never intended to pertain to slaves.  Slaves, he continued, being, in fact, property, remained so in whatever state their owners may reside.

The Dred Scott decision helped launch the Civil War, and became what is considered the worst Court decision in U.S. history.

Northern courts and politicians rejected "Scott"as binding. The Ohio Supreme Court ruled that any slave coming into the state with his master’s consent, even as a sojourner, became free and could not be reenslaved upon returning to a slave state; the New York Court of Appeals handed down a similar ruling in Lemmon v. The People (1860). In several states, legislatures resolved to prohibit slavery in any form from crossing onto their soil and enacted legislation freeing slaves passing within their borders.  Abraham Lincoln, himself, did not follow this ruling. With his Emancipation Proclamation  he claimed the executive right to free slaves in the rebellious states.

So, in fact, the "law of the land," was not followed in Northern jurisdictions.  The case remained "the law of the land" until "overturned" by the passage of the Fourteenth Amendment following the Civil War.


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