Redefining Marriage - above the Supreme Court's Pay Grade; Ruling for Homosexual 'Marriage' Would Unleash Endless National Division
Byline: Chuck Donovan, SPECIAL TO THE WASHINGTON TIMES
Forty years after the U.S. Supreme Court attempted to settle the abortion debate once and for all, anxious activists on both sides of the homosexual-marriage debate are waiting with bated breath for high court rulings some hope will settle the future of marriage. The history of abortion law and politics, though, illustrates compellingly that judge-made solutions to vast questions of social policy are doomed to failure. If the Supreme Court is paying close attention to what its rulings in Roe v. Wade and Doe v. Bolton (1973), and Casey v. Planned Parenthood (1992) have done to its authority and prestige, it will take a pass on trying to remake the meaning of marriage.
Consider just how unsettled abortion law remains in the United States. Justice Harry Blackmun and his six majority colleagues attempted to craft a decision that, from conception to birth, made the
mother of an unborn child the arbiter over whether that child lives or dies. Overnight, the laws of 50 states - conservative, moderate and liberal - were swept away in favor of a legal regime previously unknown to the planet's legal traditions. The lack of constitutional foundation for the court's profoundly legislative ruling - the creation of a trimester scheme of increasing regulation, but no prohibition - was immediately noted by scholars left, right and center.
Almost two decades later, invited to reconsider its ruling in two major cases, Webster v. Reproductive Health Services and Casey v. Planned Parenthood, the court shifted its analytical ground to a weighting test under which the primary question, subjective to be sure, was whether a law regulating or prohibiting abortion imposed an undue burden on the woman's decision to seek an abortion. Openly appealing to regain the respect of a populace that was coming to see the court as thinly robed politicians, the splintered Casey plurality announced that the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
Needless to say, the American people were not persuaded. The court's own weight was not enough to secure an end to the nation's search for a just and workable solution to questions of profound importance: Who is human, what duty do we owe to any human being with respect to the preservation of his life, and how do we fulfill that duty without descending into either barbarism or fascism? In short, the issue of abortion was and is far too important for a free people to hand over to any nine men and women. …