FMA and religion and 13th Amendment and Religion

Paul Finkelman paul-finkelman at utulsa.edu
Wed Feb 25 20:06:01 PST 2004


Eugene:

 I have spent the better part of 25 years writing about antislavery and 
the movement that led to the 13th A.  It is quite clear that in the 
early years, before 1846, most of the Antislavery Movement was 
religiously motiviated and inspired; many in the movement also refused 
to participate in politics, following Garrison's motto:  "No Union With 
Slaveholders."  During the Mexican-American War (1846-47) there as a sea 
change in antislavery sentiment, as large numbers of northerners who 
were not motivated primarily by religion came to oppose slavery for a 
variety of prudential, political, economic, and sometimes racist 
reasons. The Free Soil Party of 1848 probably shifted the election to 
Taylor, the slaveholder who was seen as moderately anti-slavery, as 
opposed to the proslavery northern doughface, Lewis Cass, who did not 
own slaves;  politics were confusing then, as now.  (consider the irony 
that George W. Bush has essentially endorsed the concept of civil 
unions!).  By the mid-1850s the Republicans had emerged as the first 
antislavery party with a large following; the Republicans carried many 
seats in 1854-55 and by 1856 almost took the presidency.

The Republicans were antislavery from the beginning. Many were deeply 
religious, but most were not.  Think of Ben Wade, Thad Stevens, John 
Bingham, and Abe Lincoln (who had hardly ever been to church); these men 
were thoroughly antislavery because slavery was a violation of the 
American Creed -- we are all "created equal" -- but this was political 
argument, not a religious one.  The ministers (like Rev. Theodore Dwight 
Weld) of the 1830s were no longer in the lead in the fight against 
slavery; now it was the political theorists like Fred Douglass (who was 
conventionally Christian, but not much more).  Chase was a deeply 
religious man in private, but he was an ambitious politician who did not 
make "faith" an issue.  

The 13th A. can be seen as a war measure; as a culmination of Republican 
opposition to slavery on economic and political grounds -- the 
Republicans fought for Free Soil, Free Labor, Free Speech and Free Men. 
 They were not religious in their arguments (although by the standards 
of today many were personally devout).  The Republican Party was the 
embodiement of  *republican* (lower case) values, not Christian values. 
 Republicans did not like to be associated with the religious fanatics 
of the movement -- like John Brown.  

Thus, while many supporters of the 13th were personally religious, and 
the old hard core abolitionists may have joined the movement for 
religious reasons, by 1864, when the 13th came out of Congress, was run 
by Republican politicians who favored "republican" values.  

Along this line the goal of the 13th and Sec. 2 of the 14th was to crush 
the "slave power conspiracy" not to bring about a religious millenium.  

One final thought, the opposition to slavery was never thoroughly 
religious, and became less so over time; moveover, despite what people 
might want to believe today, the Churches in America were more 
proslavery than anti-slavery, and the arguments for slavery coming from 
the ministers were very powerful.  Without trying to be self serving you 
can read a selection of these proslavery religious arguments in Paul 
Finkelman, Defending Slavery:  Proslavery Thought in the Old South  
(Bedford Books, 2003).

Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu



Volokh, Eugene wrote:

>	I am not an expert in abolitionist history by any means, but I very
>strongly suspect that many supporters of the 13th Amendment supported it in
>explicitly religious terms, and for religious reasons.  Likewise with the
>FMA.
>
>	At the same time, of course, some people supported the 13th
>Amendment for secular reasons.  Likewise with the FMA; I know people who
>have no religious objections to homosexuality, but who think that (1) it's
>important not to tamper with essential aspects of fundamental institutions
>like marriage, (2) the democratic process should take this matter away from
>the courts, or something else.
>
>	Finally, many people assume that opposition to homosexuality is
>somehow inherently religious.  I think that's just descriptively wrong.  The
>officially (and actually) atheistic Soviet Union, for instance, criminalized
>homosexuality -- which surely doesn't mean that opposition to homosexuality
>is *right*, but it does mean that it's not inherently religious.  In the
>U.S., most opposition to homosexuality may well be religious; but again, I
>suspect that may well have been true of most opposition to slavery in the
>U.S. in the 1860s.  I think opposition to homosexuality is generally
>misguided -- but laws embodying such opposition are not Establishment Clause
>violations.
>
>	Eugene
>
>  
>
>>-----Original Message-----
>>From: Mark Rahdert [mailto:mark.rahdert at temple.edu] 
>>Sent: Wednesday, February 25, 2004 12:58 PM
>>To: Volokh, Eugene; Zietlow, Rebecca E.; Paul Finkelman; 
>>Zietlow, Rebecca E.
>>Cc: Parry, John; conlawprof at lists.ucla.edu
>>Subject: Re: FMA and religion
>>
>>
>>The 13th Amendment coincided with some individuals' religious 
>>beliefs, but 
>>I don't think one can say it was adopted for religious 
>>reasons.  Unless I'm 
>>mistaken, the Marriage Amendment (at least as advocated by 
>>the President) 
>>would be adopted for religious reasons (to protect the "sanctity" of 
>>marriage -- a term which my dictionary defines as religious) 
>>and to that 
>>extent would  limit the establishment clause principle 
>>against laws with 
>>religious purposes.
>>
>>Mark Rahdert
>>
>>At 08:44 AM 2/25/04 -0800, Volokh, Eugene wrote:
>>    
>>
>>>Hmm -- I wonder whether people would say the same about, say, the 
>>>Thirteenth Amendment, which imposed some people's religious 
>>>      
>>>
>>values (the 
>>    
>>
>>>antislavery movement, to my knowledge, was heavily religious) on 
>>>others.  Many laws impose some people's religious values on 
>>>      
>>>
>>others, in 
>>    
>>
>>>the sense of being justified by their backers' religious preferences.
>>>
>>>I also don't quite see what the Establishment Clause problem is with 
>>>"preventing church officials from presiding over legally cognizable 
>>>marriages even if their religion mandated the recognition of such 
>>>marriages."  Church officials are perfectly free to conduct whatever 
>>>religious rites they want -- it's true that these religious 
>>>      
>>>
>>rites (or 
>>    
>>
>>>any equivalent private secular ceremonies) will not have legal 
>>>consequences as to same-sex marriage, but I hadn't thought that the 
>>>First Amendment gave churches the right to have their 
>>>      
>>>
>>religious rites 
>>    
>>
>>>have legal consequence.
>>>
>>>Finally, I take it that the argument below would would 
>>>      
>>>
>>indeed lead to 
>>    
>>
>>>the conclusion that the state must recognize polygamous marriages, 
>>>since laws banning polygamy "prevent church officials from presiding 
>>>over legally cognizable marriages even if their religion 
>>>      
>>>
>>mandated the 
>>    
>>
>>>recognition of such marriages" and thus presumably equally 
>>>      
>>>
>>violate the 
>>    
>>
>>>First Amendment.  At least the FMA, as a constitutional 
>>>      
>>>
>>matter, would 
>>    
>>
>>>trump the First Amendment in that respect (assuming arguendo 
>>>      
>>>
>>that the 
>>    
>>
>>>argument below is right); mere laws limiting marriage to two people 
>>>would be trumped by the First Amendment claim given elow, no?
>>>
>>>Eugene
>>>
>>>-----Original Message-----
>>>From: Zietlow, Rebecca E. [mailto:RZietlo at utnet.utoledo.edu]
>>>Sent: Wed 2/25/2004 11:15 AM
>>>To: Paul Finkelman; Zietlow, Rebecca E.
>>>Cc: Parry, John; conlawprof at lists.ucla.edu
>>>Subject: RE: FMA and Federalism
>>>
>>>
>>>Paul:
>>>
>>>Also, there does appear to be some conflict between the FMA and the 
>>>establishment clause (because it would impose some people's 
>>>      
>>>
>>religious 
>>    
>>
>>>values on others and apparently prevent church officials 
>>>      
>>>
>>from presiding 
>>    
>>
>>>over legally cognizable marriages even if their religion 
>>>      
>>>
>>mandated the 
>>    
>>
>>>recognition of such relationships), just as there was an obvious 
>>>conflict between the flag burning amendment and the First 
>>>      
>>>
>>Amendment's 
>>    
>>
>>>protection of freedom of expression.  I guess the latter amendment 
>>>trumps the former (as the 14th Amendment trumps the 11th)?
>>>
>>>Rebecca
>>>
>>>
>>>
>>>
>>>Rebecca E. Zietlow
>>>
>>>Charles W. Fornoff Professor of Law and Values
>>>
>>>University of Toledo College of Law
>>>
>>>(419) 530-2872
>>>
>>>rzietlo at utoledo.edu <mailto:rzietlo at utoledo.edu> 
>>><mailto:rzietlo at utoledo.edu> <mailto:rzietlo at utoledo.edu>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>-----Original Message-----
>>>
>>>From: conlawprof-bounces at lists.ucla.edu 
>>><mailto:conlawprof-bounces at lists.ucla.edu>
>>>
>>>[mailto:conlawprof-bounces at lists.ucla.edu
>>><mailto:conlawprof-bounces at lists.ucla.edu> ]On Behalf Of Parry, John
>>>
>>>Sent: Tuesday, February 24, 2004 2:24 PM
>>>
>>>To: conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
>>>
>>>Subject: RE: FMA and Federalism
>>>
>>>
>>>
>>>
>>>
>>>I apologize for making an obvious point, but there is a difference
>>>
>>>between protecting marriage and protecting speech.  We 
>>>      
>>>
>>protect speech 
>>    
>>
>>>by
>>>
>>>freeing people to talk.  Yet the DOMA proposes to protect a social
>>>
>>>institution -- not people -- by forbidding people from 
>>>      
>>>
>>getting married.
>>    
>>
>>>It's like protecting VMI by keeping women out.  Aside from 
>>>      
>>>
>>prohibition,
>>    
>>
>>>I'm not aware of another change to the Constitution that 
>>>      
>>>
>>took the form
>>    
>>
>>>of depriving people of equal liberty.  Regardless of what 
>>>      
>>>
>>one thinks of
>>    
>>
>>>the Massachusetts SJC's decision, it did not take away 
>>>      
>>>
>>anyone's rights
>>    
>>
>>>or liberties.  Nothing that is happening at the San 
>>>      
>>>
>>Francisco City Hall
>>    
>>
>>>takes away a single person's rights or liberties.  DOMA, on the other
>>>
>>>hand, has the purpose of repressing liberty in the service of
>>>
>>>sensibility.
>>>
>>>
>>>
>>>Perhaps even worse, DOMA forbids change.  Say what you will about
>>>
>>>Lawrence, but it is only a judicial decision.  Doctrine 
>>>      
>>>
>>changes -- that
>>    
>>
>>>its nature.  The doctrine announced in Roe v. Wade has changed over
>>>
>>>time, and it can change more.  But DOMA tells gays and lesbians that
>>>
>>>they can never be equal citizens because by definition they are 
>>>excluded
>>>
>>>      
>>>
>>>from the full scope of liberty (and only them, no other 
>>groups would be
>>    
>>
>>>so treated).  Whatever your moral, religious, or political 
>>>      
>>>
>>views, that
>>    
>>
>>>should strike you as a dramatic and troubling thing to do.
>>>
>>>
>>>
>>>Sandy Levinson has asked us whether we would sign the 
>>>      
>>>
>>Constitution (and
>>    
>>
>>>the new National Constitution Center does the same).  If 
>>>      
>>>
>>DOMA is in the
>>    
>>
>>>document, that decision takes on Garrisonian overtones.
>>>
>>>
>>>
>>>John T. Parry
>>>
>>>Associate Professor of Law
>>>
>>>University of Pittsburgh School of Law
>>>
>>>3900 Forbes Avenue
>>>
>>>Pittsburgh, PA 15260
>>>
>>>412-648-7006
>>>
>>>
>>>
>>>
>>>
>>>-----Original Message-----
>>>
>>>From: conlawprof-bounces at lists.ucla.edu 
>>><mailto:conlawprof-bounces at lists.ucla.edu>
>>>
>>>[mailto:conlawprof-bounces at lists.ucla.edu
>>><mailto:conlawprof-bounces at lists.ucla.edu> ] On Behalf Of Rick Duncan
>>>
>>>Sent: Tuesday, February 24, 2004 1:51 PM
>>>
>>>To: Frank Cross; conlawprof at lists.ucla.edu 
>>><mailto:conlawprof at lists.ucla.edu>
>>>
>>>Subject: FMA and Federalism
>>>
>>>
>>>
>>>Well, I don't know anyone who is a "true federalist"
>>>
>>>if this means that he or she is opposed to *any*
>>>
>>>national constitutional norms. Most people who claim
>>>
>>>to be federalists, for example, support national rules
>>>
>>>protecting freedom of speech, equal protection, and
>>>
>>>perhaps even a right to bear arms.
>>>
>>>
>>>
>>>I guess the protection of marriage, like protection of
>>>
>>>free speech, free exercise, and racial equality, is
>>>
>>>for me an issue that calls for a national response
>>>
>>>given the cultural crisis that we are living through.
>>>
>>>I would not want to live in a nation that failed to
>>>
>>>recognize that marriage is a relationship between one
>>>
>>>man and one woman, nor in one which refused to take a
>>>
>>>stand to protect marriage when it was under attack.
>>>
>>>
>>>
>>>If that disqualifies me from memebrship is the society
>>>
>>>of "true federalists," so be it.
>>>
>>>
>>>
>>>Rick Duncan
>>>
>>>
>>>
>>>--- Frank Cross  <mailto:crossf at mail.utexas.edu> 
>>><crossf at mail.utexas.edu>
>>>wrote:
>>>
>>>
>>>
>>>I think the FMA is a perfectly fine hour for
>>>
>>>
>>>
>>>federalism. Most of those
>>>
>>>
>>>
>>>embracing the federalism argument against FMA
>>>
>>>
>>>
>>>themselves favor a
>>>
>>>
>>>
>>>judicially imposed national rule mandating same-sex
>>>
>>>
>>>
>>>marriage.
>>>
>>>
>>>
>>>This may be true but it's not much of an argument.
>>>
>>>Pointing out the
>>>
>>>hypocrisy of the opposition often only highlights
>>>
>>>the hypocrisy of one's
>>>
>>>own side.  Seems like a true federalism believer
>>>
>>>would oppose both national
>>>
>>>rules.
>>>
>>>
>>>
>>>
>>>
>>>We will have a national rule on this issue one way
>>>
>>>
>>>
>>>or the other.
>>>
>>>
>>>
>>>This seems to beg the question.  Why?  It is
>>>
>>>obviously possible to have gay
>>>
>>>marriage rights neither compelled nor prohibited.
>>>
>>>
>>>
>>>
>>>
>>>I am no fan of federalism.  But this seems like one
>>>
>>>of the better cases for
>>>
>>>federalism.  Different local mores can express
>>>
>>>themselves democratically,
>>>
>>>and the issue is one where democracy will probably
>>>
>>>make the decision.  And
>>>
>>>this is an issue where a number of people probably
>>>
>>>would choose to vote
>>>
>>>with their feet and embrace the state that had views
>>>
>>>consistent with their
>>>
>>>own.  The FF&C issue is a little complicating.  For
>>>
>>>a true federalist
>>>
>>>solution, though, you'd have no FF&C, and
>>>
>>>individuals could plan their
>>>
>>>residence accordingly.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>=====
>>>
>>>Rick Duncan
>>>
>>>Welpton Professor of Law
>>>
>>>University of Nebraska College of Law
>>>
>>>Lincoln, NE 68583-0902
>>>
>>>
>>>
>>>"When the Round Table is broken every man must follow Galahad or
>>>
>>>Mordred; middle things are gone." C.S.Lewis
>>>
>>>
>>>
>>>"I will not be pushed, filed, stamped, indexed, briefed, 
>>>      
>>>
>>debriefed, or
>>    
>>
>>>numbered."  --The Prisoner
>>>
>>>
>>>
>>>__________________________________
>>>
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-- 
u


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