There’s been a lot of discussion of a memo written by Samuel Alito, President Bush’s Supreme Court nominee, in which he stated “The constitution does not protect a right to abortion.” This sentence reminded me of language in Bowers v. Hardwick, since overruled, to the effect that the constitution does not protect a right to homosexual sodomy. Both statements are, of course, quite true. But both betray a growing—and troubling—conception of both government’s power and the purpose of the Bill of Rights.
There is, in fact, only one “right” protected by the Bill of Rights—the right to be free from government control over any of our behaviors or decisions, unless government has specifically been given the power to exercise such control. In other words, the citizen has no duty to find an affirmative right to engage in any particular activity; the burden of proof is on the government, which must demonstrate its authority to do whatever it is proposing to do.
Roe v. Wade is often said to have “legalized” abortion, but that is not an accurate description of the ruling, although the practical effect was the same. The Court said that the decision to abort or not prior to what used to be called “quickening” was one of many personal, “intimate” decisions that are none of the government’s business; that is, one of the many areas of our lives protected against the coercive power of the state. In Lawrence v. Texas, the case that overruled Hardwick, the Court said government simply lacks the authority to dictate the sexual conduct of consenting adults.
If this seems like a quibble, it isn’t. We sometimes forget that the argument between the Federalists and anti-Federalists over the need for a Bill of Rights was never an argument about whether such rights should be protected. It was a debate between those who feared the future growth of state power and the “tyranny of the majority,” and thus wanted to “go on record” that certain government intrusions were off-limits, and those who argued that since the new government had only the powers specifically delegated to it, it simply had no authority to infringe individual liberties. They worried that efforts to list “protected” rights would allow people in future generations to argue that any rights not specifically listed were unprotected.
The Ninth and Tenth Amendments were the compromise: they reiterated that government does not have powers unless those powers have been specifically granted; and expressly stated that the failure to enumerate a right was not to be construed as evidence that such a right was not “retained” by the people or the individual states.
Arguments that a “right to privacy” is not protected by the Constitution conveniently ignore the history and quite specific language of the Ninth and Tenth Amendments. That is why Judge Alito’s formulation concerns me.
I’m past worrying about the prospects for Roe—it won’t be overruled anyway. The Court will just keep limiting its reach until it is meaningless. I’m worried about a Supreme Court that begins each analysis by demanding to be shown where the rights in question are expressly protected. That isn’t the question. The question is: where is it written that government has been given the right to interfere?
Opening Remarks at Jewish Community Relations Council Workshop on
Same-Sex Marriage
For the JCRC, there are really two questions about SJ 7. One is a policy question, and one is a question my grandmother would have asked. The policy question is: would this be good or bad for Indiana? The grandmother question is: would it be good or bad for the Jews?
There are a lot of bad public policies. Since the JCRC has limited resources, those resources need to be focused on issues that clearly threaten our community and our religious values. I think SJ 7 is such an issue, and is something the JCRC should actively oppose, because it isn’t just bad policy; it is also bad for the Jews.
I won’t spend a lot of time on the reasons it is bad policy, because those will undoubtedly be addressed by others. Let me just quickly enumerate some of them:
It’s bad for economic development. Indiana is trying to recruit and grow high tech industries that employ a significant number of gay people. Sending a message that Indiana doesn’t value gay citizens won’t help.
It’s bad for business. The language of Part B virtually ensures that there will be a lot of costly litigation over its application.
It’s bad for civil liberties. SJ 7 would write discrimination into the constitution—a precedent I don’t think we want to set.
It’s bad for families. This ban would do absolutely nothing to “protect” families, and claiming that it would is illogical. Look at the four most common justifications:
1) Gays are immoral. If legislators care so much about morality, why do they let rapists and murderers marry?
2) Marriage is for procreation. Then why do we let old people and sterile people get married?
3) Gay parenting is harmful to children. There isn’t a scrap of credible research supporting that assertion. Most of the “studies” cited as “evidence” come from the same good scholars who first alerted us to the fact that Sponge-Bob Squarepants is gay.
4) Same-sex unions will undermine the institution of marriage. We aren’t told how or why. For that matter, the same thing was said about interracial marriages, and about letting women own property and vote.
These aren’t reasons—they are excuses. So SJ 7 is bad public policy. But SJ 7 is also bad for the Jews. Not just because Jews do better in open and tolerant societies, although we do, but because the Jewish community has an enormously important stake in preserving the constitutional separation of church and state. SJ 7 is an effort to turn a religious belief held by some Christians into the law, in a state where many citizens—including many Christians—do not share that belief.
Now, all laws are based to some extent on a society’s shared moral premises—shared being the operative term. But in our constitutional system, in order to be legitimate, laws must be justified by what philosophers call “public reasons”—secular civic purposes that are not grounded solely in religious doctrine. Let me suggest an example: In Judaism, we circumcise baby boys eight days after birth. There is research suggesting that wives of men who have been circumcised may be less likely to get cervical cancer. (That research is actually a lot more credible than the research cited by proponents of SJ 7.) If we had enough votes, should we pass a law requiring that all male infants be circumcised, irrespective of the wishes or beliefs of the child’s parents? If we leave out the eight-day wait and don’t require that a mohel perform the circumcision, would such a law be a secular exercise of authority?
Or take a less fanciful example: women’s rights were fiercely resisted for decades, in substantial part because a majority of Americans believed God wanted women to stay home and be submissive to their husbands. That isn’t what policymakers said, of course—they talked about protecting the “traditional family.”
This is not just about marriage. The people who support this ban believe homosexuality is evil, and that equal rights for gays are an endorsement of evil. They are the same people who oppose application of Indiana’s civil rights laws to gays and lesbians, the same people who defeated a city ordinance extending health care coverage to domestic partners of gay city workers. The organizations opposed to same-sex unions are the same ones that sent angry letters to the editor when Mitch Daniels and Carl Brizzi adopted employment policies protecting workers from being fired for being gay.
This measure is part of a much wider campaign to marginalize an entire group of people because some Christian denominations disapprove of them, and part of an ongoing assault on separation of Church and State. If there is one thing Jews have learned over the centuries, it is that we do not do well in a society that gives government the right to decide whose beliefs and “lifestyles” are acceptable.
Here’s the deal: the First Amendment means that Jews have to honor the free speech rights of Nazis and anti-Semites. We have to protect the right of religious figures to say things like “God doesn’t hear the prayer of the Jew,” or “God hates fags.” And people whose religions disapprove of homosexuality have to swallow hard and honor the right of all Americans to equality before the law. They don’t have to approve, they don’t have to invite gay people (or Jews) to dinner. They can picket gay pride, they can denounce gay culture, they can run homophobic political candidates. But in a society that separates church from state, they cannot deprive an entire group of people of equal treatment before the law. That is the line in the sand—and once it is erased, no one is safe.
Since we’re talking about religion, let me just conclude by referencing a passage from Leviticus that I don’t hear quoted by proponents of SJ 7. It describes an old ritual in which the high priest placed his hands on the head of a goat, and confessed the sins of the people. The goat was then sent into the wilderness, taking the sins of the people with it.
When people are frightened, when their world no longer seems comprehensible, they need someone to blame and send into the wilderness—a scapegoat. The Germans wanted a reason for their lost war and ruined economy, and blamed the Jews. In Salem, when things went wrong, it was the witches. Today, for those who find themselves surrounded by social change and events they can’t understand or control, it’s “the homosexuals” and “the gay agenda.” It is understandable, but it is an enormously dangerous road to travel.
And—as my grandmother would have said—it’s a road that is very bad for the Jews.
I attribute this to our unique history: despite our tendency to think of America as a creation of the Founding Fathers, their generation was preceded by the Puritans and other religious dissenters who first colonized our shores. Constitutional historian Frank Lambert calls those initial settlers the “Planting Fathers,” and reminds us that in the 150 or so years that elapsed between Planters and Founders, the Enlightenment occurred, and dramatically altered prevailing beliefs about government and liberty.
The Puritans defined liberty as “freedom to do the right thing.” (And they, of course, decided what “the right thing” was.) The Founders—influenced profoundly by thinkers like John Locke—defined liberty as freedom to pursue your own life purposes free of state interference, so long as you did not thereby harm the person or property of others. While it was the Founders’ version that informed our constitution and legal system, our Puritan heritage remains alive and well. These two very different notions of what government ought to do have been duking it out in the body politic and even within our individual psyches ever since.
The Puritan approach—sometimes described as an overwhelming fear that someone, somewhere, might be having a good time—gives us laws aimed at making us godly and upright. The Founders’ approach can be seen in the equally wide-spread American attitude of “live and let live.” We still don’t seem to have noticed that the two approaches are largely incompatible.
The result of these warring impulses is a large measure of incoherence in our public policies. To be blunt, we keep shooting ourselves in the foot. On the one hand, most Americans have agreed with the Founders that government—especially at the federal level—should be limited in size and scope. But in order to deal with all those people who stubbornly refuse to do the right thing, we keep giving government new powers and building new bureaucracies. Historians note that, despite the conventional wisdom, big government didn’t begin with FDR and the New Deal; it began with the federal infrastructure we created to enforce Prohibition.
The disconnect is visible everywhere. Americans want freedom of speech—but not freedom to say that! We want freedom of religion—but maybe not for the Wiccans, or the Nation of Islam. We take pride in America’s scientific leadership, but stem cell research isn’t the “right thing,” so we send that research to competitors overseas.
Here in Indiana, some legislators are making noises about requiring schools to teach “Intelligent Design.” These are the same people who tell us that they support home rule and local control of public schools. They are the same people who have enthusiastically endorsed Administration efforts to recruit employers and jobs in the high paying fields of biotechnology and information technology—precisely the employers least likely to locate in a state seen as hostile to science.
One of these days, policymakers are going to have to choose between Enlightenment logic and their inner Puritans.
American employers have come to understand that customers come in all religions, genders, races and sexual orientations, and so growing numbers of them have adopted employment policies intended to say "welcome" in whatever language or tradition will open those customers’ pocketbooks. And globalization of business has meant more interaction and familiarity with people who are different from, say, the folks back in Kansas. All this–I once naively believed–would eventually issue in a sort of "Star Trek" era of goodwill, where people of all sorts (eventually, perhaps, even species of all sorts) would live and work together in harmony. Kumbaya and all that. Continue reading “Sing Kumbaya”
