Some "cerebral and dispassionate" thoughts on the hot button issues of gay marriage and abortion.
Aren't All Marriages Supposed to Be Gay? Isn't that Why We Throw the Rice?
"'It's about human dignity. It's about human rights. It's about time in California,' San Francisco Mayor Gavin Newsom told a roaring crowd at City Hall after the ruling was issued. 'As California goes, so goes the rest of the nation. It's inevitable. This door's wide open now. It's going to happen, whether you like it or not.'" Lisa Leff (AP), Gay Marriage Opponents Vow to Fight Calif. Ruling
Actually, it's about the California State Constitution, which (as most state constitutions do) provides for greater and/or other rights than provided in the US Constitution. Therefore, something which may pass Constitutional muster under the US Constitution may not under any given state constitution.
For that reason, and due to the Defense of Marriage Act which denies Full Faith and Credit protection to gay marriages in States that do not allow this kind of union, what California does ... is largely it's own business.
Additionally, due to California's somewhat unique level of direct democracy under initiative, referendum and reform, the California Constitution could be amended to change this result far more easily than in a state where the legislature would have to act, such as Massachusetts, or a state like NY where this would probably require a Constitutional Convention.
Now, I wonder why the Government, at any level but particularly the Federal Government, is in the marriage business at all. I seem to remember that Federal Courts have very limited subject matter jurisdiction over family law issues. (ERISA Retirement Equity Act ([REACT"] issues are the only thing that comes to mind and that is tangential.) Therefore, why do we want a Federal Constitutional Amendment prohibiting gay marriage which would open up domestic relations law to Federal Courts' subject matter jurisdiction? Do we want to (literally) make a Federal case out of this?
To me, it's a Religious artifact, with rules set by the various denominations. Unitarians, who are gay, can marry, for example, but straight Catholics, who are sterile, can't. All of these rules may sense in the context of that faith's theology, ethics and culture but may be absurd from the standpoint of the broader society. Why not have Governments register and regulate domestic partnerships (of whatever kind) and Religions make rules about what constitutes marriage? Seems like a good "Render unto Caesar ..." way of looking at this divisive ... but not really critical to the welfare of the Republic ... question.
Of course, this will rally the social conservatives to the polls in California, which could have a deleterious effect on Sen Obama in November, but I'm not sure it is going to do much elsewhere.
ON BEING PRO-LIFE OR PRO-CHOICE, A RELEVANT DICHOTOMY?
At the moment of conception, an individual genetic code is formed, separate from that of either parent and, absent twinning, absolutely different from any individual who has lived before or who will live thereafter.
I have always disliked the slogan "It's not a choice, It's a child," because it is untrue. At the moment of conception "It" is a conceptus and "It" subsequently becomes a zygote, a blastocyst, an embryo and a fetus. "It" is not a "child" in the same way that a man of thirty or a woman of ninety is not a "child:" "It" is at another way point on the road of life.
Many justify abortion on the grounds that life at that stage in at best contingent. Many times in her childbearing years, most times without her knowledge, the average woman will carry a fertilized egg that fails to implant in her womb or which otherwise fails to develop.
However, that being she carries, at whatever stage of embryogenesis, will inevitably, if it develops at all, become a human being. It is beyond cavil that it is a human zygote, a human blastocyst, a human embryo and a human fetus and, therefore, worthy of the respect due human life.
However, it is a human life that is absolutely bound up with the life and health of another human being. It can live nowhere else and is absolutely dependent, not only on the nurture of another, but on that other's very existence and health. At times, for medical reasons such as ectopic pregnancies, that life can threaten the life of its mother. At other times, treatment of a life threatening condition of the mother may terminate the life of the unborn. Maimonides, the great Talmudic scholar, justified abortion in such circumstances as being analogous to an individual's right of self defense. While this is often necessary, it seems to be much more of a "tragedy" than a "choice."
Given this, termination of a pregnancy for other reasons, convenience or economic need, is wrong. These are not "Choices" in any rational way. But, in practice, no one is so "Pro-life" that they would deny a woman life-saving treatment she consents to, even if it would risk the child she was carrying, or refuse to perform an abortion in the event of an ectopic pregnancy. You cannot legislate heroism as the legal standard, no matter how much you admire it.
Knowing when something is medically indicated and when something is not is the task of physicians and not the task of judges. If a woman does not have a "medical home," but has a health problem that may require a therapeutic abortion she should not be denied the procedure because a hospital, clinic or other provider fears the shadow of the criminal code.
In short, I believe there is an enormous equal protection issue implicit in declaring the action of one of two similarly situated pregnant women criminal because she does not have a physician who is willing to say her abortion is medically indicated. Because of this, I think the fact that non-medically indicated abortion is not currently a criminal matter is the better legal outcome. It preserves the need for the equal protection of law and limits the legal system's impact on the doctor-patient relationship. The Jesuit, legal scholar and politician, the late Robert Drinan, SJ, advocated the de-criminalization of abortion in the 1960s for those reasons.
If outlawing abortion is not the way to limit the number of elective abortions, which are a wrong, how then can they be limited? I think religious arguments are unavailing. I think the compelling arguments for a pro-life position are scientific, as religious arguments are appeals to an authority the other party may not except and are conflicting. For example, Orthodox Judaism believes that life begins when one first breathes, while Catholicism teaches that life begins at conception.
In my opinion, the best way to reduce the number of abortions is to let people hear the medical facts and the realities of life for the unborn, for example by seeing sonograms. Believers should do what they can for women who are forced by their economic or domestic situation to consider abortion. The fact that the number of elective abortions has been declining for years is a clear sign of the effectiveness of this tactic.
In sum, Bill Clinton was right. Abortion should be kept safe, legal and rare and all parts of the phrase have equal importance.