I have to make a confession: I like Robert P. George as a person and respect him as a scholar. I live close enough to Princeton and work even closer that I can attend the public lectures there. While I can’t say I know Dr. George personally, I have briefly, informally chatted with him on more than one occasion and he was nothing but cordial. (He clarified the Church’s understanding of oral sex when I asked; I mistakenly believed, like a lot of folks, that such wouldn’t be kosher because the parts were not “designed” for one another as one version of the argument goes. But he noted oral sex is consistent with the natural law provided it’s used as a means to the end of sperm trying to fertilize egg. In other words, “foreplay.” If used as an “end” in itself, it would be unnatural and thus wrong.)
And while I don’t see eye to eye with him on matters of human sexuality, his James Madison Program does wonderful work exploring the history, philosophy, theology, law and politics of the American Founding.
That said, I was disappointed to see that he and his affiliated group the American Principles Project have issued a statement calling for “resistance” to the Obergefell v. Hodges case.
George is fond of raising Dred Scott as a reductio against the principle that SCOTUS must be given the last word on what the Constitution means. As in “if you were President would you obey Dred Scott?”
In fact, when Robert George discussed issues of constitutional interpretation with Justice Stephen Breyer, he tried to pin Justice Breyer down with this question. (My Dad & I attended the event, sitting right behind us in the audience was the late great Nicholas Katzenbach.)
But this is what’s key to that dilemma (and forget about any offensiveness of the comparison): Dred Scott was worth going to WAR over in a literal sense.
Likewise with Jim Crow and Brown v. Bd. of Edu. It’s good that the President & SCOTUS were on the same page then, while the heads of the Southern States were not. But the prospect of a second civil war certainly was raised by the southern state resistance to Brown.
Further, George doesn’t get his invocation of Abraham Lincoln right. Though Lincoln obviously disagreed with Dred Scott, he didn’t support “resisting” the case on power grounds. As he said:
“We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.”
The bold face is mine.
Finally, if we are going to stick with the race/civil rights analogy (I know those supporting gay rights are often accused of unfairly invoking this as an analogy, but when you cite the Dred Scott case to argue against gay equality, you are the one who has played that card and opened the door), the position of George et al., puts them on the losing side of Cooper v. Aaron.