As we go to press, voters are electing a new Congress, a third of the Senate, and deciding countless state and local races. Also on ballots is a bewildering menu of referendums and amendments to state constitutions. Many of these measures are worrying symptoms of our partisan, winner-take-all political culture.
A number of amendments to state constitutions would ban same-sex marriage. In Missouri, a proposed amendment to the state’s constitution would make so-called therapeutic cloning, which involves the destruction of human embryos, a constitutional right. In South Dakota, voters will decide whether a recently enacted law there that criminalizes all abortions, even when a pregnancy is the result of rape or incest, will stay on the books.
In different ways, all of these measures reflect the failure of politics. Missouri’s proposed amendment, driven by powerful biomedical interests, is especially misguided. Changing the basic framework of state law to resolve the tortuous moral issue of embryonic stem-cell research seems designed to cut off debate and to foreclose the possibility of a legislative compromise opposing parties can live with. At the moment, the utilitarian argument justifying research because of the potential benefit for those afflicted with diseases like Parkinson’s seems to be carrying the day. Objections that microscopic embryos deserve moral respect and legal protection are too abstract and seem absolutist to many people. Yet the logic that permits the destruction of embryos for a greater good is easily extended to other possible sources of cure. If the relief of suffering and cure of disease are the overriding moral concerns, shouldn’t we feel obligated to use tissue from aborted fetuses if it proves effective in curing disease? And if that is the case, why not harvest what is useful from the dying? If passed, Missouri’s constitutional amendment will make it much more difficult for government to be responsive to the moral concerns of its citizens about the direction of dubious medical research.
The South Dakota abortion law, which voters are likely to overturn, is another example of why the drift toward winner-take-all politics is bad for those on both sides of a bitterly contested issue. Instead of enacting a law that might actually reduce the number of abortions, the legislature passed an extreme and unworkable statute. In doing so, the law’s proponents have reawakened deep-seated fears about the ultimate goals of the prolife movement. The vast majority of Americans think abortion should be restricted, but do not want it recriminalized. They want a reduction in the incidence of abortion and a political compromise that accommodates genuine moral and religious disagreement.
Some in the prolife movement claim that certain issues are -non-negotiable,- but without compromise the number of abortions will never be significantly reduced.
Another so-called non-negotiable issue for some Catholics is same-sex marriage, and proposed constitutional amendments banning gay marriage are headed for ratification in eight states. Writing marriage policy into a state’s constitution is unnecessary, however, and unwise. Virginia law, for example, already defines marriage as a relationship restricted to one man and one woman. Thanks to the Federal Marriage Act, neither Virginia nor any other state has to recognize same-sex marriages performed elsewhere. The Virginia amendment, say its proponents, is necessary to prevent -activist- judges from reinterpreting such laws. Yet, as J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals in Richmond, notes, the real irony is that the amendment will require judges, rather than legislatures, to interpret inherently ambiguous terms such as -domestic union- and -rights, obligations, privileges, and immunities of marriage.- Wilkinson, one of the nation’s most conservative judges, warns that rewriting state constitutions to protect heterosexual marriage endangers -the first principles of American law.- -The framers,- Wilkinson wrote in the Washington Post (September 5), -meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies.- But that is precisely what amendments banning same-sex marriage (or making stem-cell research a constitutional right) do.
According to this conservative jurist, -the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right.- These are issues for legislative debate and actionÑnot constitutional amendment.
When it comes to what is the best public policy to address concerns about abortion, stem-cell research, or same-sex marriage in a pluralistic society, not many people are -sure they are right.- That’s why debate and compromise, not merely passionate conviction, are the best avenue to political decision making.
November 7, 2006