When Courts Inflict Cruelty: Is Ronald George the New Roger Taney?

Dred Scott

Dred Scott

On March 6, 1857, Roger B. Taney, Chief Justice of the United States wrote, in the case of Scott v. Sandford, that negroes have “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.”

Most people have heard of this decision as the “Dred Scott” case. Dred Scott was a slave who sued to obtain his freedom, and the freedom of his wife and daughter.

Taney had devoted years of his life to public service. Before being appointed to the Supreme Court, he served as Attorney General in the Jackson administration. As the nation struggled with growing division over the Abolition movement, Taney aligned with those who sought to preserve the Union.

In the Dred Scott case, Taney sought to put an end to the national debate over slavery. He thought that a clear, definitive statement of the law governing the legal position of black people in the United States could stop the agitation for abolition and limits on expansion of slavery into the western territories which were clamoring to become states.

Taney worked with the best education and most sophisticated religious analysis available in his age. But like other conservative activist judges, he was willing to misstate the truth when it suited his predetermined goals. While Taney wrote that negroes were altogether unfit to associate with the white race, either in social or political relations” the dissenting justices in the case pointed out that when the Constitution was ratified 10 of the 13 original colonies allowed negroes to vote with other citizens. (This does not mean that those colonies treated blacks and whites equally or prohibited discrimination.)

Although he strove to preserve the Union and wrote from his understanding of the scientific and religious “reality” of negro inferiority, we remember Taney for this one decision that science has proven so wrong. And that Christian ethics now deride as immoral.

No case gets to the Supreme Court without first being heard by multiple lower courts. Dred Scott first sued for his freedom in Missouri, in 1846, and in 1850 a jury decided that Scott and his family were legally free. But his owners appealed and his suit finally ended up before the Missouri Supreme Court. In 1852, that Court wrote that abolition was a step whose inevitable consequences must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit.”

How many times have you heard that? In the ’40s and ‘50s, we were told that integrating the Army and other services would destroy morale, effectiveness, and the national defense. Tell it to Colin Powell. In the ‘50s and ‘60s, we were told that integrating our schools would destroy education. Tell it to Henry Louis Gates and Barack Obama. In the ‘70s and ‘80s, we were told that giving women equality would undermine our moral character. Tell it to Cindy Sheehan and Maxine Waters and Sonia Sotomayor.

Now, in 2009, another respected, knowledgeable jurist, Ronald George, Chief Justice of the California Supreme Court, has joined the 1852 Missouri Supreme Court and Roger B. Taney in the club of men who chose economic expedience over history, over scientific truth, over morality. This year, modeling his conduct on Taney, Ronald George wrote that homosexual citizens do not have the same rights under the California Constitution that heterosexual citizens have. He joined those who claim our civilization will collapse if we permit gay marriage.

Derision focuses its glare on Taney. 152 years after declaring his belief that people of African heritage could never have the same rights as people of European heritage the entire civilized world knows he was wrong. And even those who still praise the sort of discrimination he supported don’t respect him.

Roger Taney

Roger Taney

Antonin Scalia mocked Taney for being too soft. In one of his characteristic dissents, he commented on a painting of Taney hanging at Harvard Law School. Scalia derided Taney for looking sad as if he were contemplating history after the Dred Scott decision. Scalia sneered at Taney’s “expression of profound sadness and disillusionment.” Scalia, the modern, for-profit, ”christian” conservative finds it ridiculous that Taney could ever rethink his paean to racism.

The painting was made in 1859, only two years after the Dred Scott decision. Already, Taney was rethinking his stance. Already, he was aware of the place he had created for himself in history. And now, 150 years later, Scalia condemns Taney for having found a heart. For mourning his own errors. For thinking. For the modern conservative jurist there is no looking back – only the forward march to further acquisition of power and money.

We may wonder which type of conservative is Ronald George. Like Scalia, he knows a lot more science than Taney ever could have. He knows that science has proven that racial distinctions are ephemeral and that sexual orientation is genetically determined. He knows that the First Amendment protects people of many religious faiths and should not permit any religious bigotry to control the lives of others. And he knows that the for-profit churches and lobbyists who preach about “traditional marriage” are consciously ignoring the Biblical patriarchs and their many wives. Yet he sided with the “civilization will fall” crowd.

When it came time to choose, he sided with the monied interests against human rights. Taney at least had scientific ignorance to justify his ruling. George didn’t. And Taney had more. He had a religious conviction that Christianity meant something more than “do unto others before they do unto you.”

Taney truly believed that “negroes” were “beings of an inferior order.” But he also knew that they were sentient and had real, tangible needs. He had been a slave owner. But decades before the Civil War or the Emancipation Proclamation, Taney freed his own slaves. And he provided support for his emancipated slaves who were too old to work. His belief that they were inferior included the belief that a man who exploited inferiors had a responsibility to the very people he exploited.

Find a modern conservative or for-profit Christian who believes that today, if you can.

We may wonder whether Ronald George has any feelings of responsibility for those whose civil rights he discarded when he wrote that Equal Protection and California Constitutional privacy rights do not extend to same sex couples. As Taney pretended that negroes had never had rights, Ronald George’s decision pretends that same sex couples will be granted equal rights, except the right to the word “marriage.”

Will Ronald George, in a couple of years, sit with an “expression of profound sadness and disillusionment” at what he wrote, as Roger Taney did? Or will he, like Scalia, harden himself against the suffering he inflicted and move on to new conservative triumphs?

tom_hall_2.jpgCivilization didn’t collapse when traditional Jews had multiple wives in Biblical times or when Moslems had four wives as permitted by the Quran, or when Utah was founded by men with plural wives. Civilization didn’t collapse with the end of legally enforced segregation. And it hasn’t collapsed in the states which allow same-sex marriage. Will Ronald George’s hubris collapse when he recognizes that he has joined Taney as one of history’s legal japes?

Tom Hall

Published by the LA Progressive on August 21, 2009
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About Tom Hall

Tom Hall is a family lawyer in West Los Angeles. He is from Boston, and was raised in Friends Meeting at Cambridge (Quakers) to think that religion was a progressive force. During the Vietnam War, he organized draft counseling centers and worked with groups training people in techniques for disciplined nonviolent demonstrating. After the war, he became just another yuppie working to make a comfortable life. The Bush administration shocked him back into social concerns. Now he’s working to see that the Obama administration lives up to its progressive promises. Tom can be reached at ProgBlog@aol.com

Comments

  1. Steve Lamb says:

    Chief justice George stated in his response to Jerry Brown’s pleading papers the following:

    “Just because this court held a right to be inalienable six months ago, does not mean we must hold it to be inalienable today.”

    Any person who could write such a thing is no friend to the ideas of Liberty, Justice, the Rule of Law, Constitutional Government, the Constitution,or equality. A person who could and would write such an abomination to American legal thought should be stripped of every office. He would be king or tyrant, but he would allow no others to be free.

    Vote NO CONFIDENCE in Chief Justice George when he arrives for re-confirmation in November.

  2. Sharon Toji says:

    I think that Tom Hall was responding to the constant claims of persons who oppose marriage equality that it will cause civilization to fall, in so many words. I don’t believe he is claiming that everything that doesn’t result in civilization falling is acceptable.

    Polygamy is not legal here because the equality of women takes precedence over that historic practice, even though it is correct that polygamy does not make civilizations fall. Veiling women doesn’t make it fall either, or not allowing them to drive, or allowing marriage at 12. Incest has genetic ramifications for possible children, although of course that wouldn’t affect brothers or sisters marrying since they couldn’t produce offspring together. However, when incest laws were established, same sex marriage wasn’t an issue. Who knows, maybe after marriage equality is achieved for unrelated persons of the same sex, other issues may be rethought, although it’s difficult to imagine an uprising of people who want to marry their cats or brothers who want to marry each other. After all, they are already “a family.”

    The fact is, though, that the only obstacle to marriage equality for two same sex unrelated partners is actually religious. It certainly is not scientific, and since other first world countries allow it, and since so many states either allow it, or allow domestic partnerships that are marriage except in name, it is not even societal any more. George is a judge who is, at best, behind the times, or at worst, a bigot.

  3. Who knows why a civilization will fall? Civilizations don’t come with a little flag that pops up when somethat happens that leads to their collapse.

    But lets say civilization will do just fine, gay marriage or not. Do gays have a right to marry?

    Marriage is a social and cultural convention, an entity created by public perceptions. So if gay marriage is recognized as a sanctioned relationship — then yes. Gay marriage should be recognized.

    But – if gay marriage is not recognized by the public as an acceptable relationship, then no. It should not be sanctioned.

    Do people have a right to call anything marriage? Can you say a brother can marry a brother? OR a father can marry a daughter? Doesnt a brother have civil rights? Doesnt a father?

    By what logic can you say a brother can not marry a brother? Civilization won’t fall will it? Didn’t you decide the validity of gay marriage, by whether civilaztion will fall or not?

    By that logic – brother can marry brother. A man can marry a dog. Whatever someone dreams up that doesnt destroy civilization, by your logic, is worthy of being a protected recognized relationship.

    There should be some logical reason – that you can state – for gay marriage to be acceptable. Public acceptance is a pretty good indication — the political process can handle this. It is fitting and logical a public convention be politically defined.

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