Supreme Court and the culture war -- March 28, 2013 column

By MARSHA MERCER

One January day in the mid-1970s, Supreme Court Justice Potter Stewart was riding in a car down Pennsylvania Avenue when he spotted a crowd marching up Capitol Hill toward the court.

Stewart, unaware it was the anniversary of the Roe v. Wade decision, asked what was happening. People were protesting against legalized abortion, Stewart was told.

 

“I don’t understand it,” the puzzled Stewart responded, shaking his head. “We’ve decided that.”

Longtime New York Times reporter Linda Greenhouse says the court’s chief deputy clerk, who was with Stewart that day, told her the story to illustrate how easy some court decisions seem at the time.

Stewart was one of five Republican-appointed justices who voted in the 7 to 2 majority to make abortion legal in 1973. When he retired in 1981, the decision still looked “rock solid,” Greenhouse wrote. Now, “not so much.”

The justices decided the abortion issue, but they didn’t settle it. The fight over abortion rights still rages, and, in a gigantic leap to the past, could be headed back to the courts.

North Dakota Gov. Jack Dalrymple on Tuesday signed the nation’s strictest abortion law, prohibiting nearly all abortions in the state. Dalrymple concedes the measure likely won’t survive a court challenge but insists it’s “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

North Dakota jumped over Arkansas, which for a couple of weeks had the title of strictest abortion law.   Last year, 19 states passed 43 provisions limiting abortion services, according to the Guttmacher Institute, a reproductive rights research group.

  

Could the Supreme Court unintentionally have set the stage for the 40-year war over abortion? None other than Justice Ruth Bader Ginsburg, a staunch advocate for women’s equality, has long believed that when the court stepped ahead of the legislative process, it ignited the protest movement.

States were heading toward abortion rights, but not fast enough for advocates of complete change. Only four states had repealed their anti-abortion laws while 13 had liberalized them when the court made legal abortion the law of the land.

The sweeping ruling was hailed as a breakthrough. But Ginsburg said in a lecture in 1992 that it brought on a backlash that hurt progress in women’s rights.

     

“Around the extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction,” she said then. 

America’s story has always been one of expanding personal rights, not reining them in. No one could have imagined in 1973 that four decades later states would be chipping away at a woman’s right to choose. 

Ginsburg suggested in the 1992 lecture that the anti-abortion movement might never have gathered steam had the court taken smaller steps. We’ll never know.  

Appointed to the high court by President Bill Clinton in 1993, Ginsburg celebrated her 80^th birthday March 15. She hasn’t changed her mind about Roe.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year.

Much has changed in society, thankfully, since 1973. The Supreme Court heard arguments Tuesday and Wednesday on two cases involving same-sex marriage. Nine states and the District of Columbia now allow gay marriage.

Seventeen state attorneys general, including those in Alabama and Virginia, filed a legal brief, citing fallout from Roe and Ginsburg’s comments to contend that the court should butt out and let the process work its will. That’s not fast enough for many Americans who want marriage equality to be the law of the land.

In the arguments, the justices seemed reluctant to wade into a case from California, where voters banned same-sex marriage with Proposition 8. Justices seemed far more likely to strike down the Defense of Marriage Act, a 1996 federal law that allows only heterosexual married couples to receive spousal benefits.

Ginsburg gave a glimpse of her distaste for DOMA’s discriminatory effects.

The law, she said, creates “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

When the court rules, probably in June, we may find out whether Ginsburg thinks that same-sex marriage has reached the point where the court needs to step in.

And if, as she hopes, Ginsburg stays on the court as long as Louis Brandeis, who retired at 82, the court’s liberal leader could hear an abortion case.

©2013 Marsha Mercer. All rights reserved.

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Obama the marriage president? -- Jan. 31, 2013 column

By MARSHA MERCER

President Barack Obama made history and gladdened many hearts when he endorsed gay rights and gay marriage in his second inaugural address.

Just think what additional good he could have done had he also endorsed marriage generally.

   

I know. The tired phrase “marriage between one man and one woman” has become a wholly owned subsidiary of the political and religious right. But that need not scare the president or anyone else from talking about its benefits to individuals and society.  Married people live longer, healthier, more prosperous lives than singletons, studies show.

And you don’t have to be Rick Santorum to know that marriage is a grand anti-poverty program. Many studies have shown that If people marry before they start families, the children fare far better. This isn’t a news flash.

In 1965, an obscure assistant secretary of Labor named Daniel Patrick Moynihan wrote a report for President Lyndon Johnson about the breakdown of the black family. Moynihan warned that the crumbling family structure left many households headed by single women and these were more likely to be stuck in poverty. He hoped the report would be the impetus for a national strategy to break the cycle of poverty.

But Moynihan’s report was leaked to the press, causing an uproar. Any hope of a national conversation was lost as critics lambasted Moynihan for blaming the victims of poverty, insulting single moms and ignoring supports in the black community. His controversial report  notwithstanding, Moynihan went on to serve 24 years in the U.S. Senate. He died in 2003.

The problem of the collapsing American family has only gotten worse since the Moynihan report.

“Nearly 50 years later, the picture is even more grim – and the statistics can no longer be organized neatly by race,” says Isabel V. Sawhill, a budget expert and scholar at the Brookings Institution. “Moynihan’s bracing profile of the collapsing black family in the 1960s looks remarkably similar to a profile of the average white family today.”

Sawhill writes in the latest Washington Monthly: “White households have similar—or worse—statistics of divorce, unwed childbearing, and single motherhood as the black households cited by Moynihan in his report.

“In 2000, the percentage of white children living with a single parent was identical to the percentage of black children living with a single parent in 1960: 22 percent,” she says.

While Moynihan saw family formation as a racial divide, Sawhill says it’s increasingly a class issue.

“Because the breakdown of the traditional family is overwhelmingly occurring among working-class Americans of all races, these trends threaten to make the U.S. a much more class-based society over time,” she writes.

When educated, middle-class couples form two-parent families, they’re able to give their children “time and resources that lower-and working-class single mothers, however impressive their efforts to be both good parents and good breadwinners, simply do not have,” Sawhill says.

In his autobiography, “The Audacity of Hope,” Sen. Barack Obama writes that liberal policy makers and civil rights leaders, in their urgency to avoid blaming the victims of historical racism, wrongly labeled Moynihan a racist and “tended to downplay or ignore evidence that entrenched behavioral patterns among the black poor really were contributing to intergenerational poverty.”   

As president, Obama has approached making families stronger by focusing on the responsibilities of fatherhood, usually around Fathers Day. In June 2010, he announced a nationwide Fatherhood and Mentoring Initiative, but he conceded that it’s hard for government to change attitudes or behavior.

“Now, I can’t legislate fatherhood – I can’t force anybody to love a child. But what we can do is send a clear message to our fathers that there is no excuse for failing to meet their obligations,” he said.

That may be sound social policy, but it doesn’t make anyone’s heart sing.   

As Obama and other leaders promote the value of gay marriage, they shouldn’t be silent on the value of marriage between a man and woman. It’s not either-or. Both are good.    

©2013 Marsha Mercer. All rights reserved.

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