There has been much speculation as to retirements of Supreme Court justices during the coming presidential term. One opinion is that as many as four justices could be nominated to the Supreme Court. However, there were no retirements or other vacancies in the previous presidential term, in contrast to expectations, so it is difficult to accurately predict. (See CNN's discussion on Supreme Court vacancies.) There has been some discussion about the political philosophies which can be expected of justices whom the future president, whether Bush or Kerry, might nominate to the Court. Unfortunately, most pro-life and pro-choice people have focused on the issue of abortion and its legality in this country, particularly with respect to the justices of the Supreme Court. While this is undoubtedly an important issue, we need to realize it is not really the most important issue we need to be concerned about with respect to Supreme Court justices.
Even if a majority of pro-life justices were to acceed to the bench in the next four years, it would not be a simple matter for them to destroy the abortion industry or overturn Roe vs. Wade overnight, or in a single decision. About the most the Supreme Court could be reasonably expected to do would be to uphold a partial-birth abortion ban, or to rule that states could make their own laws regarding abortion. This is primarily because, like the American public, the justices are split into three camps, those always for, those always against, and those sometimes one way or the other -- the swing votes. It's the swing votes that effect the first change.
Back in the 1960s and early 1970s, no one was thinking about abortion
or its legality when justices were being appointed to the Supreme Court.
If voters and politicans had been thinking, would things have happened the way they did?
Rather than focusing on abortion, we need to consider what
new issues are on the horizon. In the related area of
family matters, the up and coming issue is that of same-sex "marriage."
Like procreation in the 1960s, the legal definition of marriage is largely uncharted territory. It is obvious that until recently, there was no such thing as a marriage or a union except between a man and a woman. Although there has been one Supreme court case regarding homosexual conduct (Lawrence vs. Texas, 2003), there has not yet been one regarding civil unions or the definition of marriage. With respect to same-sex unions, we are now at the same stage as the issue of abortion was when Griswold vs. Connecticut went before the Supreme Court in 1965, which striking down states' laws against contraception, and paving the way for Roe vs. Wade.
In this article CNN tries to downplay the importance of the upcoming appointments on this issue, and tries to portray Kerry as against homosexual "marriage," but we all need to take note. Kerry's actual track record is in favor of homosexual "marriage." He voted against the Defense of Marriage Act of 1996. Only recently, as he is trying to run as president, does he pretend to change his views, saying he is not in favor of same-sex "marriage," only "civil unions," which is merely a change of words. The "civil unions" he favors seek to be equal or equivalent to marriage. On the other hand, Bush's track record shows he is clearly in favor of traditional and religious values, which nearly unanimously inform us to love and respect homosexuals as fellow human beings, but forbid any blessing or approbation of homosexual behavior or same-sex "unions."
Judging by past experiences, the justices appointed now will certainly be the ones who have to make the weighty decision on same-sex "marriages," which is likely to be about 8 years away, if the timing is similar to Roe vs. Wade.
Even if Kerry is truly in favor of states' making their own laws on same-sex "marriages" as he says he is, what kind of justices would he appoint to the Supreme Court? Ones in favor of state autonomy? I think not. Ones in favor of maintaining the legality of abortion? Almost certainly. Ones in favor of legalizing same-sex "marriages"? Its hard to imagine anything except yes. On the other hand, what kind of justices will Bush appoint? Ones in favor of state autonomy? Difficul to know. Ones in favor of maintaining the legality of abortion? Probably not ones in favor of partial-birth abortion, but not necessarily in favor of outlawing abortion, either. Ones in favor of same-sex "marriages"? Probably not, but this is rather difficult to know.
We also need to realize that the issue of marriage is more fundamental than the issue of abortion. Without marriage (in the general sense of the word), abortion is a moot issue, because without fertility and the possibility of pregnancy, there is no child either to kill or to avoid killing. Legalization of abortion does not mean that all unborn children are going to die; all it does is allow pro-abortion groups to persuade and pressure women into having abortions. Recently, pro-life groups have learned to respond by persuading and supporting women to give birth to their children, instead of condemning them. It has been a very important and valuable learning experience for the pro-life community.
At first look, one might say that legalizing same-sex "marriages" is a similar issue to legalizing abortion: people don't have to be homosexual if they don't want to. But it is not the legality of the homosexual conduct which is at issue here; it is whether society and the state in particular will bless this type of relationship and treat it on par with or in a manner similar to normal marriage. By doing this, the dignity of marriage will be eroded. The problem is, unlike the abortion question, which generally only affects the people involved, the mother, the unborn child, and perhaps a grandparent or the father, legalizing same-sex "marriages" affects the position in society of all normal families, by setting same-sex "marriages" as equal or nearly equal. We can't simply persuade homosexuals not to get married, the way we can persuade women not to have an abortion. Homosexuals will contract "civil unions" in a particular society if they are permitted. Instead, we must persuade a certain society (such as a particular state) to prohibit support same-sex "marriages," and so-called civil unions by enacting appropriate laws.
Unfortunately, this can lead to a Dred Scott type of result. Homosexuals will "marry" or contract "unions" in one state, move to another state which does not recognize it, and demand their "rights." If we do not recognize the right of a state or smaller unit of society to define their laws, civil rights activists will make up "rights" which have never before appeared to back their position. The end result will be anarchy, since people's personal freedom and "rights" will be supreme to the rights of the states and other local government.
Of course, the appointment of Supreme Court justices is an uncertain one, as CNN correctly points out. But the power of the Supreme Court is undeniable, and the importance of whomever is appointed cannot be denied, not just for issues of life and family, but other issues as well. Follow this link to read my opinions on other issues.
For millenia, human society has had its
foundation in a structure called family. Not all cultures have the same
family culture. Just as one example I am familiar with, the
Iroquois of North America, even after becoming Christians,
retained their traditional family form in which
ties were matrilineal; even after marriage, children were still members of
their mother's family or clan. As a result, a father was more involved with
the raising of his sister's children, who were of the same family or clan as
himself, rather than his own children, who were taken care of more by their
mother's brothers.
In some cultures, extended family may live together, such as grandparents
with children and grandchildren. Of course, in our American culture, a
family is basically father and mother with their children, whether adopted
or natural. Regardless of the form of the family, all provide a way to raise
and nurture the children. This is not obvious without studying them,
but take note:
If there were family or societal structures that did not
provide for a way of raising and nurturing the children, they would have
died out long before now.
Many pro-life partisans have referred to the legalization of abortion as the "Dred Scott" of our times. It is true, that, many years later in the future, we will look back on the denial of constitutional rights to the unborn as we currently look back upon the denial of constitutional rights to slaves and blacks in the 1800s. However, the legal dilemma of the Dred Scott case was different: whether states have the choice to recognize the acts of another state. (The applicable passage in the U.S. Constitution is Aricle IV, Section 1) Will states be able to choose whether or not recognize homosexual "marriages" or "unions" of other states. Or will they be coerced by civil rights activists? Courts have already dealt with a similar issue with common-law marriages (recognized by some states but not by others) and it is well known how people sometimes travel to a particular state to get married to bypass a law of their own state. But in all these cases, the fundamental question -- can these two people contract marriage -- is never in doubt, only whether they actually did -- and it is not a problem to allow the laws of the locality to determine this. With regard to homosexual "marriage," there will be conflicts. According to the Constitution (Article IV, Section 1), it is up to the Congress of the United States to make appropriate laws regarding this situation. Whether national laws are passed or not, though, the issue will be ultimately decided by the Supreme Court. Perhaps not in the next four years, but certainly by those who are appointed over the next four years.
As you can see, if you care at all about the future of society,
you need to go vote on November 2.
Placed online on Wednesday, October 20, 2004.