In the following audio lecture, Can the political branches counter the courts on marriage and abortion? Teaching conservatives again what they once used to know, Hadley Arkes sketches in some detail a Lincolnian approach to recent court decisions on marriage, and not-so-recent decisions on abortion. What a Lincolnian approach amounts to is simply respecting a legal decision as it relates to the respective litigants of that case, but ignoring and opposing the precedent that may be thought to issue from that same decision. Such an approach is Lincolnian because it reflects the approach of Lincoln himself, and his administration, to the fateful Dred Scott decision both before and after his election to the Presidency.
Arkes suggests that the first step of such an approach with respect to marriage would be the passing of federal legislation (DOMMA- Defence of Monogamous Marriage Act) which would restrict marriage to two people, thus denying possible marriage recognition to polygamous and polyamorous arrangements. Though such an act would leave Obergefell, so far as it applies to same-sex couplings, unchanged, it would plant premises that may overturn it in time. However, in the short term, it would counter several lines of argument used in Obergefell that could be used in subsequent decisions to justify polygamy, polyamory, etc.
Listen to the lecture for more.
Picture: ‘The Wedding Register’ (1920) by Edmund Blair Leighton.