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Iowa and Civil Rights – A Rebuttal Against Gay “Marriage” Ruling

As has already been reported, Iowa’s Supreme Court unanimously overturned a law defining marriage as a union between one man and one woman, thus granting same-sex couples to get “married”. The left defines this as a huge victory for “civil rights” and in the cause of “marriage equality”, and they proudly proclaim how the court followed the Constitution. There is a mention in the ruling (page 17) of the first case decided by the Iowa Supreme Court when the state was still a territory, and how the court supposedly “bucked the trend” against slavery:

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions.

While that sounds impressive, it is entirely untrue; there was no contract for slavery. Don’t get me wrong; that first case by the Iowa Supreme Court was most definitively a huge victory for civil rights. But that is because the civil rights had already been written into the law…in two places. As a matter of fact, the opinion in the case of Ralph was one I believe Justices Antonin Scalia and Clarence Thomas would be proud of, because it reads like one they would have written. Please read on.

The story of Ralph is absolutely fascinating. Ralph was a slave in Missouri owned by a man named Montgomery. In 1834, the two worked out a written contract that would allow Ralph to be a free man provided Ralph paid Montgomery the sum $500 plus $50 interest. Ralph would be allowed to go to what is now Iowa (Iowa was part of the Territory of Michigan at the time) to do some mining work for pay, using the proceeds to pay his debt. The work didn’t pan out and Ralph wasn’t able to get the money to pay Montgomery in Missouri. After about five years, Montgomery contracted a couple of bounty hunters to bring Ralph back; Ralph was captured by bounty hunters and about to be put on a ship bound for Missouri and his former owner. However, an A. Butterworth managed to properly file a habeas petition on behalf of Ralph, and Ralph’s case, in a very short amount of time, was heard by the Iowa Supreme Court. By this time, Iowa Territory had been created in 1838 after having been transferred from being part of Michigan Territory to becoming part of Wisconsin Territory in 1836. This is one of the keys to understanding this case.

Around the time that the convention to draw up the United States Constitution was taking place in 1787, Congress (still under the Articles of Confederation) passed the Ordinance to establish the Northwest Territories, the area that comprises Ohio, Indiana, Illinois, Michigan, and Wisconsin (Northwest of the Ohio River, East of the Mississippi River; the latter was the western border of the original United States). Article VI outlawed slavery:

There shall neither be slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crime, whereof the party shall have been duly convicted; Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service, as aforesaid.

The proviso is important as it pertained to Ralph’s case; a slave in the Northwest Territories would only be considered a slave if it could be proved that the slave had escaped and was considered a fugitive by his/her owner. The Ordinance was updated twice by Congress, signed both times by President George Washington, after the United States Constitution went into effect. Despite the fact that Sec. 2 of the 1792 update allowed territorial governors and judges the ability to repeal any of the Ordinance’s laws, the article against any establishment of slavery remained in place. There is no record of any territorial governor or judge attempting to remove Article VI.

In 1803, the United States purchased the territory of Louisiana, all of the land that had been owned by France that was west of the Mississippi River; what is now Iowa was part of the Louisiana Purchase. A number of years later, Missouri was clamoring to be a state. However, slavery had already been introduced there, and many in Congress were worried that the addition of Missouri as a slave state would tip the balance of states with slavery to one more than those that didn’t. Congress wanted to authorize the addition of Maine as a state in order to restore the balance; the result was the Missouri Compromise of 1820. Sec. 8 added language barring slavery to any new territory north of latitude 36 degrees 30 minutes, with the exception of the new state of Missouri. As with the 1787 Ordinance, there was a provision recognizing that slaves captured in the new territory that were proven by their owners to be fugitives would be returned. Unlike the 1792 update to the 1787 Ordinance, there was no option for territorial governors or judges to repeal the no slavery section.

So now we jump ahead to 1834 when Ralph and his owner Montgomery had a written agreement that would set Ralph free. Michigan had already been a territory for nearly 30 years when Congress attached to it all land from the Louisiana purchase that was north of the states of Missouri and Illinois, and land that was west of the Mississippi River and east of the Missouri River (the land that is now Wisconsin, Iowa, Minnesota, and the eastern halves of the Dakotas). The Organic Law of Wisconsin of 1836 (an organic law allows Congress to establish an administrative agency; in this case, the establishment of new territories) creating Wisconsin Territory (which reduced the size of Michigan just prior to its statehood) adhered to the anti-slavery provisions of both the 1787 Ordinance and the 1820 Missouri Compromise; the Organic Law of Iowa of 1838 creating Iowa Territory (which reduced the size of Wisconsin just prior to its statehood) did as well.

It is now 1839 and Ralph’s habeas petition is heard before the Supreme Court of the Territory of Iowa. In the gay “marriage” case ruling by the present Iowa Supreme Court, they made the claim that the Ralph case had to do with a contract for slavery. But it did no such thing. As written by Chief Justice Charles Mason, the ruling in the case “In The Matter Of Ralph (A Colored Man,) On Habeas Corpus” (from an 1895 edition of “The Annals of Iowa”) states categorically that Ralph couldn’t be considered a fugitive since Montgomery, his former owner, had willfully authorized Ralph to go to a free territory in order to get the money to pay Montgomery back for his freedom.

Chief Justice Mason acknowledges what constitutes a fugitive and what doesn’t (page 537):

We do not say that there can be no escape where the slave goes to a Free State by the consent of his Master. If, sent upon an errand, or traveling in the company of his master, he should refuse to return, he might probably be regarded as a fugitive. But this certainly cannot be the case where the journey was undertaken with the understanding of all parties that the slave was going to become a permanent resident of the Free State or Territory.

Mason goes on to affirm the intent of Congress with regards to slavery in the 1820 Missouri Compromise, then states some pretty incredible stuff (page 538-9):

But it is said that, although the act may prohibit slavery, it does not declare a forfeiture of slave property, and that the most which the law will authorize will be, to require the master to remove that property out of the Territory. It is true the Act, thus mentioned, does not, in express terms, declare a forfeiture of slave property, but it does, in effect, declare that such property shall not exist.

The master who, subsequently to that Act, permits his slave to become a resident here, cannot, afterwards, exercise any acts of ownership over him within this Territory. The law does not take away his property in express terms, but declares it no longer to be property at all. Of course those legal remedies, which can only be resorted to upon the presumption of a still subsisting ownership in the master, become altogether annihilated.

[snip]

Such is, precisely, the state of things in the case now before us. Property, in the slave, cannot exist without the existence of slavery: The prohibition of the latter annihilates the former, and, this being destroyed, he becomes free.

Could the claimant, in this case, retain the custody and control of the petitioner, without invoking the aid of our laws, and without their violation, we certainly should not interfere to prevent him. But when he applies to our tribunals for the purpose of controlling, as property, that which our laws have declared shall not be property, it is incumbent on them to refuse their co-operation. When in seeking to accomplish his object, he illegally restrains a human being of his liberty, it is proper that the laws, which should extend equal protection to men of all colors and conditions, should exert their remedial interposition.

In the end, what the Supreme Court of the Territory of Iowa upheld in the case of Ralph was the right of the people’s representatives in Congress to enact legislation barring slavery anywhere it wanted to, and that Ralph was not in any way a fugitive as defined in the laws in question (Chief Justice Mason did require Ralph to pay his outstanding debt to Montgomery). There was no “contract for slavery” in the Ralph case as asserted by the present Iowa Supreme Court in their recent ruling since the owner (Montgomery) let Ralph go, doing so in writing, to a Free Territory to become a permanent resident there. Had the territorial Supreme Court ruled otherwise, they would have been guilty of creating a right for slave owners out of whole cloth in an activist manner as the present Iowa Supreme Court (and the ones in Massachusetts and California) did with the gay “marriage” case. The opinion by Chief Justice Mason in In The Matter Of Ralph was of the strict constructionist type practiced by Justices Scalia and Thomas (and others).

The ruling in the Iowa gay “marriage” case, after immediately mentioning Ralph, added the following for political effect:

This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford,…which upheld the rights of a slave owner to treat a person as property.

As I’ve explained, that wasn’t the case at all. With what was said by Iowa’s Chief Justice Mason as quoted above, a slave might, and Mason doesn’t go further here, still be considered a slave even in a free state or territory if there is no prior agreement between the slave and his owner that the slave will be free, which was the case between Ralph and Montgomery. In that context, especially since there was never an arrangement between Dred Scott and his owners, the two cases are wholly different (in my opinion, Dred Scott was an activist ruling; per the history archives of the state of Missouri, the Dred Scott ruling upheld a questionable Missouri Supreme Court ruling that had overturned a Missouri appellate court ruling that was in Scott’s favor). These cases were not at all related other than the fact that a black man was involved in both cases prior to the passage of the 13th Amendment.

The Iowa gay “marriage” ruling by the Iowa Supreme Court is based on the Equal Protection provision of the Iowa Constitution. But is it really valid? The current ruling cites last year’s California In re Marriage Cases that led to the passage of that state’s Proposition 8 defining marriage as a union between one man and one woman into the Constitution, along with the Connecticut Kerrigan v. Commissioner of Public Health decision, as well as the aforementioned In The Case Of Ralph and Scott v. Sandford. In page 32 of the ruling, the court makes this bold claim:

Although neither we nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual orientation, numerous Supreme Court equal protection cases provide a general framework to guide our analysis under the Iowa Constitution.

But as with their politicized opinion of the Ralph case, this isn’t true either. One case they don’t mention that is absolutely apropos to the gay “marriage” question is Minnesota’s Baker v. Nelson from 1971 which rejected the equal rights assertions of the first gay couple to file for a marriage license and denied their request. Although I am normally loathe to quote anything from Wikipedia, this entry from November of last year (which is current as of this writing) states the following:

The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal “for want of [a] substantial federal question”. That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

I can’t find the actual dismissal anywhere as the Supreme Court rejected the appeal outright without hearing any arguments; however, the Wikipedia entry points to quite a few recent state and federal cases where Baker was used as precedent to rule in favor of other states maintaining the traditional definition of marriage. In other words:

Baker is binding precedent and unless overruled by the United States Supreme Court, it remains that way.

And:

As such Baker establishes that a State’s decision to prohibit same-sex marriage does not offend the United States Constitution.

I can’t improve on that.

I believe that it is inevitable that marriage will one day include homosexual couples in this country. I’m not for it, and never will be for it; on the contrary, I have no problem with the idea of civil unions, that give homosexual couples in committed relationships all of the privileges that married couples get without calling those relationships marriages. What I do object to is how same-sex couples have finagled the court system to call those relationships marriages in opposition to Constitutionally established statutes. These rulings do not resolve any of the residual problems that are created, something the legislative process handles in a much better manner (or should, anyway). Plus, the idea that an unelected judge or Justice can force such a social change on the people, those who all these Constitutions are supposed to be for, creates ill feeling and great anger on those who benefit from such rulings. I see those that bring these cases as narcissistic and lazy since they don’t even try to convince the rest of us about the benefits of same-sex marriage, at least as far as voting for it or voting for legislators who would support it. That is the way of the left.

The Iowa Supreme Court completely ignored precedent in their ruling, as have every other court that has ruled in favor of overturning a statute that defines marriage as a union between one man and one woman. They have usurped the meaning of the phrase “equal protection”, so much so that this ruling, and others like it, are in conflict with what the Supreme Court has determined how far equal protection should go in gay “marriage” cases. With the information I’ve provided above, arguing against such rulings with those who support gay “marriage” by judicial fiat will, hopefully, be easier.

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