The Only Question

Note: This was begun a little over a year ago but I just found it on my computer. Please pardon the old news (an oxymoron, isn't it?). Also note that it was from the time I used end notes, so I'll continue with them as I finish this essay. And if the content is similar to that in one or more of my other essays, I'm sorry. I'm only conveying last year's thoughts.

I heard on the radio yesterdayⁱ that the odds on the Chicago Cubs winning the World Series in 2015 had dropped from one in forty to one in twelve. It seems that they had just spent one hundred fifty-five million dollars on a long term contract for pitcher Jon Lester and the team was expected to do far better with him on board. Ticket prices will also probably go up but I don't care. I'm a Mets fan, and I live in New York. (Anyway, an important question it raises – one for another time, though – is “What is reality?” Dealing with this situation, we all know that whatever the Cubs do they don't have a chance. They can spend all the money they want, or have – or hope to have, but a World Series win will always be out of their reach.ⁱⁱ The Mets, on the other hand, ...ⁱⁱⁱ)

(There was also a story about an asteroid that will pass within three million miles of earth^iv in 2047. The likelihood that I'll be around then is moderately low, so I'm not too worried about that either. At least not yet.)

Today's news had such important items items as these. There are other stories that have been in the news recently and they've made me think about all manner of things – some important and some of no consequence.

News reporting is supposed to raise questions. Depending on the nature of the reports the questions may be different. Variation will also relate to the perspective of the questioner. The poor, for example, ask different questions from the rich – questions sometimes echoed by their supporters, and even by people who think they are poor. The strident controversy involving the Occupy Wall Street Movement, its participants, and its spinoffs, typifies this kind of a situation. And I want to spend a little time discussing some of the issues that relate to particular groups. (But I won't bother with Wall Street. It's too much a matter of fad and fashion rather than substance. I'm more interested in controversies that are less populist-driven and will be around longer.)^v

So let me illustrate my point that different populations have different concerns and different questions by citing two controversies that seemingly involve relatively few people. At least directly. (But they really concern us all.) Both have been the sources for debate and disagreement – often vehement. They raise the a very basic question. The first deals with the right of citizens to refuse to pay for activities that they oppose. We've probably all read of instances when a citizen protested the use of his tax money for the military. He didn't believe in war – or perhaps a specific war – and chose to withhold that part of his taxes that would be credited to the Defense Department. He considered the tax a violation of his religion.

The second controversy regards the rights of individuals with gender dysphoria. At least one court has ruled that such people are entitled to use whatever rest room was most comfortable for them.^vi Their gender preference was accompanied by what was determined to be a constitutional right to express it by rest room choice.^vii

The stories are very different, and the matters that they raise as well. But there are some questions they raise that apply equally in both cases, as well as in numerous other contexts, and I shall try to discuss them. If I am successful it will become obvious that there is a single uncertainty – a single issue – which has to be considered irrespective of the scenario, if those problems are to be fully understood. And I am acutely aware of the difficulty faced. I know the question. But I don't know the answer.

Perhaps I don't know the answer because I'm not a lawyer, let alone a Supreme Court Justice, but the question involves the rights of our citizens. The Constitution – specifically the Bill of Rights – guarantees us certain freedoms and protections. One is the assurance that an individual's beliefs and religious practices are outside the ambit of Congress's power to legislate or control. The meaning of that freedom, like the meaning of the entire Constitution, is the subject of many interpretations and differences of opinion. Without discussing and dissecting them, without arguing about whether the interpretation should depend upon what those who formulated it said or what (we believe) they meant, our government and our courts have taken the approach (in terms of taxes for the military) that individuals cannot decide for themselves that they will not pay for the defense of our country, even if their religion seems threatened. We similarly don't allow an atheist to opt out of taxes that fund a chaplain for Congress. And we permit tax exemptions for religious institutions. We have chosen a practical, and politically acceptable, solution to the problem. Perhaps we “understand” our position to reflect what the Founders believed and wrote, but the reality is that we “understand” the original document to say whatever we believe, notwithstanding any claim that it actually represents the intent of those who wrote it.

When it comes to gender dysphoria, however, the debate centers not on the “rights” of one group, but two, the first comprised of those who suffer from dysphoria and who wish everyone else to accept their new identity – after all, their gender is a private matter^viii – and accord it the recognition due one with a similar identity from birth. The second group includes those who believe their own rights are compromised when individuals who are unhappy with the sex into which they were born invade their privacy. The courts have adopted the position that the rights of the dysphoric take precedence over those of the euphoric. They can decide for themselves. It is hard to understand this to have been the position of the Founders since it is unlikely that they would have even given the concept any thought. Irrespective of any claims by members of the judiciary, the subject is not covered in the Constitution, no matter how you construe its words. But the bench has chosen sides and must find justification for it.

The basic uncertainty – and it will remain so for a long time – revolves around our rights as American citizens. It involves the question of beliefs, religious and otherwise. It is a basic constitutional issue. It bothered the Founders, and it was a question that they thought they had solved with the Bill of Rights. Both scenarios I have cited involve those rights and beliefs but suggest that we'll solve the questions day by day. Or, actually, they'll be decided for us.

The concept of gender dysphoria is a matter of deeper and more consequential belief than the Cubs winning a World Series, and that's saying something. People hope and pray for the Cubs. But they know that the ultimate outcome is out of their control. Not so those unhappy with their physiognomy, who prefer to take their beliefs and their sex into their own hands.

I        December 10, 2014.

ii       Actually the Cubs did pretty well last season. In fact they nearly made it to the World Series. “Nearly,” of course is the key word, and their failure to “close the deal” typifies their fate. “Wait 'til next year?” Don't bother. It won't help.

iii      Alright. They didn't win either. But they got closer.

iv      From an astronomical point of view that's apparently a “near-miss.” Actually it sounds to me more like a “near hit.”

v        It's a year later and I haven't heard much about it recently. People are protesting other things nowadays.

vi  https://www.lifesitenews.com/news/maine-high-court-orders-school-to-open-girls-restrooms-to-transgendered-boy

vii      More cases have been litigated subsequently with varied results.

viii     “Privacy,” though not ever found in the Constitution, is “understood” to be there by a majority of the Supreme Court. It is a Constitutional right. They are what they believe themselves to be.