1.22.2015

Roe Ruined Romance (or how to save your love life in a culture of abortion)

             When the Supreme Court of the United States handed down the ruling in Roe v. Wade 42 years ago today legalizing abortion and annihilating nearly all state protections, it likely had no idea how that would wreak havoc on romance for a generation of young adults.  Based in the privacy jurisprudence between a husband and wife from Griswold v. Connecticut in 1965, Roe assisted in forming new law in Lawrence v. Texas in 2003 that expanded and blurred notions of sexuality across all sorts of normative lines.

             And the results have devastated romance for young adults engaging in sexual activity.  Women’s rights, though thought by many to be dependent on reproductive choice, have been limited by Roe, as feminist scholar Catherine MacKinnon has argued in “Feminism Unmodified.”  She posits that abortion does not afford women more authority over sexual activity or reproductive choice, but rather that “[a]bortion facilitates women’s heterosexual availability,” noting that “abortion is inextricable from sexuality.”  MacKinnon observes that even while contraception would be a better choice for a woman than abortion, “[n]orms of sexual rhythm and romance that are felt interrupted by women’s needs are constructed against women’s interests.” This sexual liberation does not free women; rather, as MacKinnon states, “[t]he availability of abortion removes the one remaining legitimized reason that women have had for refusing sex besides the headache.”   Abortion has permanently altered a woman’s bargaining power in romance and sexuality.  As Richard Stith put it in his article “Her Choice, Her Problem,” published by First Things in 2009, the newly created right in Roe that was supposed to grant enormous freedom to women has had the perverse result of freeing men and trapping women.

 

Conflict pertaining to sexuality is readily observable in culture, having been outlined back in 1992 by Steven Seidman in his book “Embattled Eros: Sexual Politics and Ethics in Contemporary America,” analyzing the major dynamics and patterns of contemporary debate on sexuality as two sexual ideologies: the libertarian – where sex has no moral connection – and the romanticist – where sex is about romance and morality.  Today the sexual sphere sometimes seems so confused and entangled that it defies both description and analysis, leaving young adults lost and wandering in the maze of sexual choices.  Easy access to abortion has increased the expectation and frequency of sexual intercourse, making it harder for a woman to deny herself to a man without losing him.  Therefore, the availability of abortion has eliminated a potential natural consequence of premarital sex and led to a casual sexual culture. In her book “Sex and the Soul,” on the intersection of faith and sexual experiences of college students, Donna Freitas discusses the complications created by casual sexual values.  “The problem was that the hookup culture promoted reckless, unthinking attitudes and expectations about sex, divorcing it from their larger value commitments – religious, spiritual, or otherwise.”  Although Freitas never explicitly considers abortion, her research deals in particularity with the casual sexual culture college students face today, reporting that students she interviewed were weary and fatigued by their sexual experiences.  The pressure to participate in sexual encounters leaves them exhausted, spent and unfulfilled.  Women particularly feel disempowered in this sexual culture - created by Roe

 

Instead of power and control being promoted by the right to abortion, the paradigm of liberty has essentially magnified the power of uncommitted men.  This has leveraged male influence over women, and damaged male-female relationships.  Roe has hurt women, and ruined romance because the availability of abortion created a disconnect between sexual intercourse and procreation, removing or causing to disappear a level of sexual caution that dating relationships generally benefit from in terms of emotional protection.  Romance is lost in a culture of sexual expectation.  Those expectations of immediate intimacy are made possible by the availability of removing an unwanted pregnancy.  Furthermore, women are compromised in their relationships with men by their own acquiescence to arguments made by a lover based on the availability of abortion.  When Roe became a backstop for failed contraception, it had the unexpected consequence of facilitating the sexual exploitation of women and men.  Sexual liberty, postmodern sexual freedom, and the hookup culture have not supported women or their exercise of so-called women’s rights, and they have not supported men in finding lifetime happiness. 

 

Young adults can, however, salvage their love lives, even in this legal culture of abortion.  The expansion of sexuality and privacy notions in the law do not have to govern choices or behavior.  Though something might be permissible, that does not mean it is beneficial.  Indeed, not every legal right is constructive.  Rather than look to legal rights, look to intuitive moral understanding.  And rather than seeking sexual opportunity, seeking the companionable, friendly, and affectionate good in a relationship is more fulfilling.  Indeed, men who look out for the protection and best interests of women are most attractive.  Women who value their own sexual purity and intimacy are more attractive than any easy mark.  Sexual intimacy creates a body and soul oneness between two people that transcends the relationship in mysterious ways, emotionally, socially, personally, even professionally.  Each man and woman is a valued individual, not a sexual commodity.  Therefore, honor your body, and that of the one you love.  Undeniably, studies have shown that sexual purity before marriage virtually guarantees sexual fidelity during marriage. 

 

Young women and men in America today still desire above all other things the happiness offered by a life-long marriage – a romantic relationship of security and peace that allows a special space for legacy creation.  Though Roe ruined romance, it does not have to rob anyone of a fantastic love life.  Young adults should make their own choices, rather than allow the Supreme Court to do it for them.

 

- To read the full article “Roe’s Effects on Family Law,” published by Washington and Lee Law Review, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2441274.

 

 Law is more than a profession - it's a calling.

1.20.2015

Marriage of "Supreme" Importance

Marriage will once again be front and center on the docket of the Supreme Court of the United States, as it announced Friday afternoon that it will hear cases dealing with state marriage amendments from Ohio, Kentucky, Michigan and Tennessee in April.  A decision can be expected on that last day of the High Court's session in the summer. At issue is the right of a state to define marriage in its constitution and decide whether to recognize same-sex marriages performed in other states.  Ultimately, the issue will be whether states can regulate any aspect of marriage as part of state public policy.

In the article "Federalism or Extreme Makeover of State Domestic Regulations Power?  The Rules and the Rhetoric of Windsor (and Perry)," by Elizabeth Oklevitch and me (available for a free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093), we discuss at length the opinion of the Supreme Court of the United States in United States v. Windsor as express in its affirmation of the right of states to regulate family law.  Windsor affirmed state power at least twenty-nine times, while simultaneously repudiating the federal definition of marriage.  At the same time, the California Proposition 8 case of Hollingsworth v. Perry provided an opportunity for the High Court to endorse democratic involvement in the process of state regulation of family law, but there it ruled that citizens had no standing to represent their own process in the voter-approved state referendum defining marriage for California. Thus, the characterization of federalism in Windsor conflicted with the actual outcome of Perry in the summer of 2013. In light of that apparent contradiction, we argued that “the traditional power of States to define domestic relations” mandates that the federal government should refrain from intervening in marriage entry regulation.

 

Now the federal Circuit Courts have arrived at conflicting conclusions regarding a state's right to define marriage in domestic relations laws, and conflicting notions as to how full faith and credit must be applied to those rulings when new expanding definitions severely offend a state's strong public policy favoring dual gender marriage.   The Supreme Court of the United States will now step in to settle the conflict, and this time it should simply restate its own rules and dicta from Windsor and leave the regulation of marriage to state law.

 

In Windsor, a couple of the Justices already predicted April's coming arguments, but with different conclusions.  Chief Justice Roberts expressed confidence that “state power to define marriage, state sovereignty, and state diversity,” federalism-based arguments relied on by the Court in reaching its determination, will support state choices to recognize only heterosexual marriage in the future. (Windsor at 2697, Roberts, J., dissenting).  In contrast, Justice Scalia’s dissenting opinion exudes far less optimism.  Scalia saw the Court’s seven-page tribute to states’ power to define marriage as a farce, and speculated that the majority relied on the federalism rhetoric to shield the reality that it laid the groundwork to extend its holding to state laws excluding same-sex marriage at a later date. (Windsor at 2692, Scalia, J., dissenting).  Distrusting the Court’s assertion that “[t]his opinion and its holding are confined” to state-sanctioned marriages, Scalia discussed how Lawrence v. Texas, the case finding a right to private consensual sodomy, was expanded to justify Windsor even though Justice Kennedy in Lawrence explicitly said its holding was not related to any official recognition of homosexual relationships.  These observations and predictions by the Justices themselves point to state regulation of marriage and family matters as standing on thin rhetorical ice with the majority.

 

Justification for expansion of rights never envisioned by the United States Constitution, regardless of the outcome of April's arguments, should encourage those who understand the time-honored definition of marriage as the crux of civilization to stand firm in personal belief. Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the moral and public policy agency of the nation’s largest Protestant denomination, writes this about the importance of the marriage case at the High Court in his January 16 post entitled :The Supreme Court and Same-Sex Marriage: Why This Matters for the Church:

"The Supreme Court announced today that [it is] taking cases on whether same-sex marriage is a constitutional right. Effectively, this means that the highest court in the land will decide, this year, whether marriage, as defined for thousands of years, will exist in our country any longer. ... [T]his is not something we should shrug off. Marriage isn’t merely a matter of personal import or private behavior. States recognize marriage for a reason, and that reason is that sexuality between a man and a woman can, and often does, result in children. The state has an interest in seeing to it that, wherever possible, every child has both a mother and a father. (See Rethinking Mom and Dad, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112 .)   The state doesn’t create this reality. It merely recognizes it, and attempts to hold husbands and wives, fathers and mothers, accountable to their vows and to their responsibilities. In every aspect of the Sexual Revolution, from the divorce culture to cohabitation to casual sex to the abortion revolution, children have borne the burden.  If the Court finds a constitutional right to same-sex marriage, we will have a generation of confusion about what marriage is, and why it matters. Beyond that, we have already seen that the Sexual Revolution isn’t content to move forward into bedrooms and dinner tables. The Sexual Revolution wants to silence dissent. The religious liberty concerns we are grappling with already will only accelerate.  We should pray that the Supreme Court does not take upon itself a power it doesn’t have: to redefine an institution that wasn’t created by government in the first place. But we shouldn’t wring our hands in fear, or clench our fists in outrage."

 

Marriage between a man and a woman protects children and strengthens society.  The right of a state to define marriage in its own state constitution and domestic regulations and to decide whether to recognize same-sex marriages performed in other states fosters family strength.  (Read more about that at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.) It is at the heart of democracy and at the heart of strong state policy.  The Supreme Court could very likely rule, however, that all states must follow laws endorsing marriage expansion to same-sex couples.  That ruling would in turn inevitably advance marriage expansion away from incest restrictions, toward the weakening and removal of age restrictions on marriage, and to the elimination of monogamous requirements. 

 

Change to family and society as a consequence of marriage expansion is inevitable, but the specifics of that change are unpredictable.  As Justice Alito stated in Windsor, “change in family structure and in the popular understanding of marriage and the family can have profound effects,” and yet, if acceptance of same-sex marriage becomes widespread, “[t]he long-term consequences of this change are not now known and are unlikely to be ascertained for some time to come.” (Windsor at 2715, Alto, J., dissenting).   It is also generally recognized that continued expansion of marriage will affect marriage as an institution, either strengthening or weakening it.  Indeed, advocates on both sides of the same-sex marriage debate maintain that marriage expansion undermines the institution of marriage. (See fn 150, Oklevitch & Kohm.) 

 

If the Supreme Court rules to require all states to recognize same-sex marriage the exact way marriage will be affected is uncertain, yet it will unquestionably be altered, and the reverberations of those changes will be felt throughout society for generations.

1.18.2015

Roe Ruins Gender Equality

              42 years ago when the Supreme Court of the United States handed down the ruling in Roe v. Wade legalizing abortion and annihilating nearly all state protections for fetal human life, it likely had no idea how that would wreak havoc on gender equality for a generation of young adults.  Based in the privacy jurisprudence between a husband and wife from Griswold v. Connecticut in 1965, Roe assisted in forming new law in Lawrence v. Texas in 2003 that expanded and blurred notions of sexuality across all sorts of normative lines.  And somewhat surprisingly, gender disparity in sexual freedom has arisen as a result of this jurisprudential progression of privacy.  Examples abound.  Since Roe, some men have advocated for a paternal rights exception to the abortion right a woman enjoys. Because abortion gives women more power to decide whether to procreate, some argue that men should possess some rights in balance of that choice.  At the same time, a man could be continually promiscuous and neglect birth control because of abortion availability, entailing less cultural pressure for a man to show commitment to a woman following sex when the man can rightly say that she can readily terminate any resulting pregnancy.  Furthermore, courts have repeatedly ruled that if a child is born to an unmarried woman, the parents cannot contract to waive the man's child support obligation.  So while denying men any rights after conception, courts have consistently upheld a woman's right to abortion, a right she may exercise unilaterally even if she is married.  Roe has pitted men against women, and women against men.  Indeed, contemporary notions tending to eliminate the complementary nature of gender have been thwarted by Roe. If gender is no longer binary, however, it would seem that the unequal treatment of two people similarly situated as parents promotes a violation of equal protection.  Some unwed fathers have (unsuccessfully) sued the women they impregnated for fraud.  Men have also argued for their rights in tortious conversion as a way to provide compensation for the loss of a wanted child aborted as unwanted by his or her mother.  None of these legal arguments, however, have been able to trump the autonomy and privacy of gestation. 

 

This passive gender inequality has come about simply because of Roe.  To learn more about Roe's effects on the family see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2441274.  To read more about gender equality see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112419, or how abortion has created a paradox of female happiness and brought about the rise and fall of women's rights see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001387, and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2007200.  Among a host of other things, Roe first and foremost takes innocent life, while it also works to ruin gender equality, thereby hindering family restoration.

1.15.2015

Parents and Children Stand Up for Faith and Home-School

Parents have the right to direct the upbringing of their children.  This legal principle is supported by federal constitutional law, federal case law, and Virginia law.

 

Yet when parents choose to home-school their children for faith reasons they sometimes become targets of educational regulation, as happened recently in Goochland, VA.  The local CBS News affiliate covered the story at  http://wtvr.com/2015/01/14/goochland-co-school-board-votes-to-repeal-religious-exemption-policy-update/.  The policy in question required children ages 14 and up, who wanted to be home-schooled, to provide a statement about their religious beliefs to the school system. 

 

Because parents and children stood up for their rights the school plans to repeal its misplaced policy.  Learn more about parental rights in protecting the best interests of children at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957143.