=

Yesterday was National Women's Equality Day. On August 26, 1920 the 19^th Amendment to the Constitution went into effect.

That having been said, however, the reality is that there's no such thing as equality. (I think I've said this before.) It's purely a philosophical construct. Just as there are no two identical snowflakes, there are no two identical people. We differ in many aspects – sex is certainly one of them, though not always the most noticed in modern society. (And certainly not “gender.”) The visible differences between people are often masked by clothing, or minimized by style.

But that doesn't mean they don't exist. Nor other differences. We differ in height, weight, strength, intelligence, abilities and talents, interests, and a host of other features that are apparent to ourselves and to those we meet.

There are hidden differences as well, however. You're probably unaware of your basophil count or your serum creatinine, unless they were just drawn and you looked at the laboratory report. You probably don't know (or care) how many times your heart has beaten in the last twenty-four hours, unless you're attached to some monitoring device that does the counting. The chances are good, however, that the numbers are not equal to those of the people you'll meet today. Or any other day. Even your identical twin.

For just as we differ in terms of our natures, we differ in our experiences. Even before we're born. So “identical twins” – at least as the term applies to matching DNA – may not be identical. (See http://www.nytimes.com/2009/10/06/science/06qna.html?_r=0) Even the DNA itself is subject to mutation, so differences may occur there as well. But the differences related to those we meet and befriend, the schools we attend, the programs we watch, and whatever else we see or hear, or otherwise experience, will also play a part in who we are and in what we manifest to others.

And while differences in religion may not be obvious unless we make them so, they're likely to affect the way we act (ditto our ethnicity) – even if we reject the philosophy behind them. (The tension, however, between a secular society and a religious tradition can be a source of contention for us all. “Blue Laws” and other secular concessions to religious laws may limit us – especially if our religion doesn't accept the laws – while secular norms may affect the religion itself. E.g. must the Catholic Church accept the idea of women as priests since an egalitarian society would like it that way?) That's not to say that everyone considers all religions equal, or that atheists and believers would accept each other – especially their ideas.

But none of that really deals with the question of what constitutes equality. We're certainly not all the same. In fact no two of us are the same. In terms of our characteristics and our capabilities we're all different. We're not equal. And there's no concept of equality in the animal world from which, according to Darwin, we're all descended. Not between dinosaurs and dogs, and not even between two lions. There's a hierarchy in every society: a pecking order. And, whether or not it corresponds to our societal fashions and political correctness, the pecking order is related to sex and to strength. Nature doesn't know from equality. It's a purely human concept.

It's unlikely that anyone takes the idea of equality seriously. At least not in the sense that suggests that we all have equal capabilities. We may not want to admit it, but we're aware of it. We've even developed language that acknowledges the reality. We speak about “special” education rather than admit aloud the fact that some are not as intelligent as others. And we idolize sports figures who have greater physical abilities than we. We know that different people have different talents from ours, and that's not a bad thing. We're all different.

Our founders were surely aware of those differences. Yet they spoke of equality anyway, even though they clearly recognized that no two of us were the same. They certainly disagreed with each other regarding many things. In all likelihood they understood the concept of equality, however, in political terms rather than in respect to the characteristics obvious to those with whom we interact. Their goal was to provide us all with the opportunity to benefit equally from society – politically, economically, and socially. And their view of who might be a recipient of the rights they assigned may not correspond with our own, but their vision of the concept of equality does, though over the generations there has been “tweaking” of the list of those who should benefit from the political equality they envisioned. Hence the nineteenth amendment and others that have extended rights to other Americans.

We fool ourselves, however, when we speak of equality. We long for sameness rather than diversity, as we simultaneously praise diversity. But it would be a very boring world if we were all the same. Political equality is reasonable, however Nature (or G-d for those who believe) has given us different assignments. It's only when we superimpose human “norms” on those that we get into trouble. Perhaps we should all vote (at least those defined as “we” at any particular time), but it's only because we aren't all equal that we don't all think and vote the same way.

Inequality is what makes life interesting.

Nothing Could Be Finer

Jennifer. Seventeen, and never been kissed. Sounds bizarre doesn't it, in this hypersexual post modern age (substitute whatever cant term you prefer).

Of course that's not precisely accurate. The busses of family members were unavoidable, but a strict set of values inherited from her parents, and an uncompromising religious background, made her avoid circumstances in which romantic involvement might arise. But her time would come.

There was an editorial in today's New York Times, and numerous protests all around the country. Charlotte, North Carolina, had passed a “non-discrimination” law which gave transgender individuals the right to use whatever public rest rooms they preferred. (Presumably others were given the same right since the law demanded no proof of gender identification or sex.) There was resistance which was attributed to a fear of rape, and some local governments imposed their own regulations limiting bathroom use to that corresponding to what was declared on their birth certificates, as did the state.

North Carolina has a history. It has lots of history, but my particular interest relates to 1960, when four young men sat at a lunch counter in Greensboro, seeking to be served in accord with the rights guaranteed them by the American Constitution. No creation of a new minority group was involved, nor was there a right proposed that wasn't obvious – even to those who opposed it. No new law was required, nor was it necessary to hypothesize a justification. Now North Carolina was again in the eye of the law, only this time the issues weren't quite so clear.

Of course the idea that bathroom choice would lead to rape was disingenuous, but it was a good and provocative argument for both opponents and supporters of the state legislation. We live in an age when public safety dominates all our thought, and sometimes it's preferable not to discriminate between real threats and imagined ones, between an actual situation and a straw man. It's much easier to stir up emotion then – easier than when addressing a reality that may not be as vulnerable to propaganda. And an appeal to Americans to support the “rights” of transgender individuals irrespective of the views of others seems to be a long overdue call to all “fair-minded” Americans. The issue, however, is safe space, not safety. It is privacy.

But back to Jennifer. (Full disclosure: she's my creation, a straw girl, but a straw girl probably closer to the reality faced by twenty-first century adolescents than the one proposed by the populists and politicians.) She was overjoyed to receive a letter of acceptance to a local university in Charlotte – one located just far enough away that living at home would not be practical. She loves her family, but the time had come to test out independence.

With two brothers and only one bathroom for the family, her trips had always been hurried. She understood the problem and took her situation in good nature. She was a good scout. But she dreamed of the time when she could shower, wash, toilet herself, and even brush her teeth in a comfortable, unrushed setting. It was a feature of “slow” southern culture that she had never enjoyed. There had been tastes of that liberation in high school, but the luxury and relaxation of a shower or other prolonged activity did not apply there.

Jennifer opened the letter from college with great anticipation. First came the acceptance itself. She had worked hard to make this aspect of independence a reality – partly because of pressure from her parents, but largely based on her own initiative – and she couldn't help but believe that she had earned it. There were a lot of forms and notifications and, at the bottom of the stack, an insertion notifying her that bathrooms were open to whoever felt comfortable in them. How could she feel so in a setting in which people of both sexes (in her view) were free to wander around? However sympathetic she may have felt for emotional needs of those confused about their sexual identities, it was hard for her to understand why the rights of the majority could be legislated away – sacrificed – in the interest of satisfying the ”needs” of a newly named minority that was in the limelight now. Perhaps it was politically advantageous to cater to this group, but absent any actual constitutional right or public demand for an amendment to our governing document it was hard to understand the justification.

However politics rules, and the public had to be convinced that opposition to this “right” constituted bigotry. New York's governor is seeking to prevent any New York officials from traveling to North Carolina in order to pressure the state to restore the rights of this oppressed minority. (And the same tactic is being used by others.) It should be remembered that New York State is the home of New York City, America's largest city – a city that has already decided that public urination is not nearly as offensive as we used to think. Although it used to be a cause for arrest, a summons is all that is warranted nowadays. Perhaps the modern approach is to eliminate bathrooms entirely, allowing anyone to rid him-/her-/it- self of internal evils wherever. Or, at the very least, to eliminate all but unisex public rest rooms.)

Perhaps individual rest rooms are the answer; rooms where anyone can go and stay for as long as he (don't infer any sexual bigotry by my use of the word) wants. It would require much more space than is used now and be much more expensive, but it would respect the rights of everyone – except those who demand that everyone else accept his choice of gender.

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[This essay was begun on March 24^th. Today is April 4^th. Unfortunately this screed has taken far longer to write (type) out than is usually the case. Those who know me will understand why; those who don't will, in all likelihood, neither notice nor care. In any event, however, it's the thought that counts.]

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.

I Am What I Am

Give me Affirmative Action credit. I may be white outside, but I feel black inside.

Let me be a fireman. Perhaps I'm quadriplegic, but I feel strong inside, strong enough to rescue people.

I want a Senior Citizen's discount. I may have been born only thirty years ago, but I feel like I'm seventy.

Admit me to medical school. Everyone says I'm dumb, but I feel smart.

Bizarre requests, aren't they? No one would take those self-identifications seriously and no one would act on any of them, but here's another.

PORTLAND, Maine — The Maine Supreme Judicial Court on Thursday guaranteed the right of a transgender child to use the school bathroom designated for the gender with which he or she identifies.... ⁱ

Actually, that item is a little old, dating back to January 30, 2014 so I'm adding the following from the Portland Press Herald on December 2, 2014:

Court orders Orono school district to pay $75,000 award in transgender girl’s lawsuit Nicole Maines and her attorneys will share the payment, concluding a precedent-setting case over denied access to a student bathroom.

The original suit stemmed from a complaint by another boy that he wasn't allowed to use the girl's bathroom at the school, although the child named in the suit (not the complainant but the one he used as an example), who identified as a girl despite his/her birth sex, was permitted to do so. That other child felt like a girl and wanted to be treated as one. And the court agreed.

The case, not surprisingly raises many important questions. One relates to the feelings of others, and to their rights – both those of the other boy and those of the girls using the bathroom. Only the “rights” of the transgender child, however, seem to have been supported by the court. And that leads to the question of whether the courts have (or should have) the authority to make such a decision – to decide that feelings rise to the level of legal realities, and that such feelings are accompanied by rights. And, it appears, they take precedence over the rightsⁱⁱ of others. It seems that wishing will make it so.

What is reality? And who decides what it is? All of our laws are based on it. If, for example, a thief believes that his act is just,ⁱⁱⁱ if his “self-identification” is that of an honest man fighting for the rights of the poor, does that make it reality? Are the thief's rights to freedom, and to the money he may have stolen, the new reality that takes precedence over the views of the victim and of others who may have been involved in the situation?

My intent is not to belittle the feelings of this, or any other, transgender individual but to inquire about whether the problem belongs on the court docket or the schedule of the psychiatrist. The American Psychiatric Association (APA), however, has concluded that gender dysphoria is not a psychiatric disorder,^iv so I can only conclude that the courts are right to act. I'm not sure if the APA considers gender dysphoria a normal condition, but they have concluded that it is not a psychiatric disorder. And, as I noted earlier, the courts have decided that those with such dysphoria have rights which trump those of others who lack it.

There is a song in “La Cage aux Folles,” a 1983 Broadway musical, entitled “I Am What I Am.” In that song Albin, a drag queen, expresses pride in his feelings and disdain for the views of those who question that perspective. But the song is not completely true. It really proclaims “I am what I feel I am.” That's not reality.

“Self-identification” can be a denial of society and its rules and norms. We cannot all make our own definitions and laws. And society – we – cannot accept that position without risk. A system in which every individual has a right to decide who he is, what he wants and what's good for him, irrespective of what others may want, isn't democracy. In a way it returns us to the state of nature. It may not be anarchy, but it's a world in which we all make our own rules and we cannot accept all it implies.

Indeed, we have taken that position in the past. Does a smoker have the right to smoke in the workplace? The courts say no. While the smoker may have the right to pursue his passion, the smoke offends and threatens others. People may drink. They have that right. We've rejected prohibition. But drunk driving isn't permitted. The benchmark is not the drinker's right, but the concerns of others. “Your right to swing your arms ends just where the other man's nose begins.”^v When your action affects me negatively, it is no longer a victimless one. Self-definition isn't good enough. A problem exists when that definition impacts negatively on others. And that impact may be psychological or it may involve the “right” of privacy.

In Roe v Wade, the United States Supreme Court identified a right of privacy by reading between the lines of the Constitution. And, as an extension, in Lawrence v Texas it was their view, and hence the law of the land, that actions in private between two consenting adults are legal. They're no one else's business – especially not the government. I'm hard put to find it in our founding legal document, but I cannot fault the principle.

Two consenting adults. Makes sense. But in this particular case the privacy of others was not considered. The “rights” of only one, the transgender child, were involved. Whether some or all of the others who used the rest room consented to his/her presence was not the issue. And the people who might consider their privacy compromised were children. The court was not considering any act of two consenting adults. Clearly privacy could not be invoked as the origin of this “right.”

So the lower court in Maine didn't follow the lead of the “higher authority” unless it believed that it was being led to expand rights and find them where they had never been seen before. And that seems to be what happened. “Lawyers representing Nicole Maines, who is now 16, said the decision could lay a foundation for other states’ courts that are facing questions about the emerging rights of people who identify as the opposite of their birth gender.”^vi Reality must give way to “the emerging rights of people who identify as [whatever].”

There are many who rail at those who speak out for “law and order.” They attribute it to Tea Party members and other fundamentalists. If we don't jettison our standards entirely though, does that mean we won't punish what we consider wrong? Does it mean that we change our standards with the times, in the name of “sensitivity,” so that unorthodox behavior is acceptable? Do we force others to accept that behavior and agree that it is more important than their own?

It is our tradition to prevent the majority from suppressing the minority, but it is not our tradition to give the minority the right to subdue the majority. And it is certainly not our tradition to ignore reality in order to do so.

Next episode: “Testing – One, Two, Three … Ten” – Musar time.”

I        Dispatch from the Bangor (Maine) Daily News. There are many other stories you can read on the subject. Just do an internet search.

ii       That may be an overstatement. It's not clear that those who are not transgender have any comparable rights.

iii      Clearly Robin Hood was so persuaded.

iv      http://thinkprogress.org/lgbt/2012/12/03/1271431/apa-revises-manual-being-transgender-is-no-longer-a-mental-disorder/

v        Zechariah Chafee, "Freedom of Speech in Wartime," 32 Harvard Law Review 932, 957 (1919)

vi       Portland (Maine) Press Herald, January 30, 2014.

Rights And Wrongs

                                                                                            

According to Protagoras (490-430 BCE), “Man is the measure of all things.” Protagoras was a Greek and, according to Plato, a professional sophist. In view of his history, he qualifies as a dead white European male. Thus we reject everything he says. While that's not my automatic response, in this instance I accept the rejection of this particular declaration of the primacy of Man for several reasons. The most obvious is religious, but I won't get into that at this time. Rather I shall begin with Teddy Roosevelt.

It was the late President who said, in a State of the Union address,ⁱ “No man is above the law ... ”ⁱⁱ And that is the way our country is supposed to operate. Although crime exists and there are many who place themselves above the law, there are many who, less schooled in avoidance of the system and less able to afford sophisticated legal protection, come before what we term “the bar of justice.”

That's the way we work. According to the Constitution, Congress makes the laws and the courts decide on their just enforcement. In between is the executive power which provides the tools for the overall system, and it includes the mechanisms for bringing suspected violators to justice. But the bottom line is that the courts decide what the law is and what the law means. The courts (not Man) are the measure of all things. We know that is true because the Supreme Court has told us that it is.ⁱⁱⁱ

Sometimes it is difficult^iv to see the justice in a court decision. In one case,^v for example, the Supreme Court decided that it was in violation of interstate commerce laws for a farmer to grow wheat for his family's use if that exceeded what the government permitted. The Justices, however, decided that the part for his own consumption was illegal and the decision of the Secretary of Agriculture to fine him was proper and in keeping with the Constitution.

Sometimes the Court sees “rights” in the Constitution that are not obvious to those like me who are uninitiated.^vi Many designate it as “judicial activism.” That's a nice way of saying that it's politics for Justices. So it's important to be sure the right ones are on the bench – a high priority for every President.

Perhaps the courts shouldn't insert themselves in such matters. Perhaps they should. But one could surely argue that the court shouldn't “see” rights simply because they think they ought to be there. One might fear that such a procedure contradicts the idea of the rule of law. He might be concerned that however right a new “right” might be, it has been established wrongly. Perhaps this supports Protagoras's view: In this instance, Man (or Woman^vii) is the measure of all things. One of the more important issues each time there is a presidential election is the knowledge that the President (with the approval of the Senate) will choose candidates for open Supreme Court positions. Since the law is whatever the Justices say it is, choosing one with a particular political philosophy is an important means of making law conform to your own agenda. So an unelected Justice gets a lifetime appointment as a potential creator of rights. The original authors of the Constitution required ratification of their document. They needed to have their ideas approved. Supreme Court Justices do not.^viii

But that's enough quibbling. Back to the issue.

Okay. Griswold v. Connecticut taught us all some important lessons.^ix Privacy. Behind closed doors. Consenting adults. Keeping the government from intruding on our private beliefs and practices makes sense. You don't have to be a libertarian to want to keep public officials from deciding issues that you view as matters of morality. That, however, is coming to pass.^x More and more there is intrusion by the courts on matters of privacy and belief. The issues are no longer privacy and closed doors, or consent, or even adults. The key word is “rights.” The courts have discovered constitutional rights where they may not be apparent to most of us.

The Colorado Division of Civil Rights,^xi a civil rights court, has decided that it is discrimination to require that a transgender student – born a boy but identifying as a girl^xii – be denied use of the girl's bathroom. The use of the teachers' rest room or that of the nurse was deemed to be discriminatory. Fear was expressed that the child would be stigmatized. The consent of the other children in the bathroom was not the issue. Their privacy was not the determining factor even in a public bathroom.

What are the rights of the other children (and their parents) who are embarrassed by the presence in the bathroom of one they considers of the opposite sex? Suppose one of those children has been subject to sexual abuse and is traumatized by the presence of what she considers a member (sic) of the opposite. And what if parents simply don't want their children exposed (literally, figuratively, or both) to the anatomy of the opposite sex?^xiii

Does the ruling apply only to children or also to adults of what some might consider the opposite sex? If only children with “gender dysphoria” are involved, what is the upper limit of age? Do older individuals who identify with the opposite sex have any rights. Should those who object to the ruling or are not covered by it be permitted^xiv to use an alternative bathroom?

This is not the only case of its type but it is the first to specify that the rights of the transgender student trump the rights and beliefs of others. Various courts have affirmed the idea of equal rights for homosexuals, while the New Mexico Supreme Court has ruled that a photographic studio has no right to refuse the business of a same sex couple that wants their ceremony photographed. The personal and religious beliefs of the photographers are secondary issues. As the New York Times put it, “One of the justices, Richard C. Bosson, wrote: 'At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others.'”

The issue is not any particular moral opinion. And the issue is not minority versus majority rights. The issue is whether the state has the right to impose its own morality on the rest of us. Notwithstanding “compromise … to accommodate the contrasting values of others,” however, at some point civil “rights” become “wrongs,” and the weight of judicial authority doesn't automatically mean that some rights can be sacrificed because of the current social milieu. It's a complicated balancing act in which the rights of the victims must be considered too. But it may be difficult to decide who is the victim. Too often there are instances in which the deciders of the law decide that President Roosevelt (Theodore) was wrong and their social agendas are (above) the law, and are guaranteed by the Constitution whether or not there is any mention of the issue in that document. And the rights that are clearly delineated are secondary to the ones they have “discerned” there, irrespective of what others may think. The judges too often view themselves^xv as the measure of all things.

There was once a view in the military: “Don't ask, don't tell.” It was a view that acknowledged that there was a right of privacy, and it was no one's business what consenting adults did behind closed doors. (The Supreme Court had already decided that what you did on your farm was the government's business.) It was, however, viewed as discriminatory because many considered it as denying their right to declare openly their sexual orientation. They took pride in their views and resented anything that might discourage their declaration. They won their point, and now the courts seem to have decided that their rights take precedence over others.

Score one for civil rights and for the measurers of all things.

Next episode: “Prometheus Bound” – Adam bound?

i       December 7, 1903.

ii       The same idea was expressed in various ways in earlier times (eg by Plato, Aristotle, and Cicero among others).

iii       Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

iv      At least for me.

v       Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942).

vi      When my wife and I were courting (it's like dating but if you've never heard the word it's not at all similar to “hooking up,” “shacking up,” “doing it,” or whatever the current slang is, since the risks of pregnancy, AIDS, or other STD don't exist) contraception was illegal in many states. Then came Griswold v. Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed 2d 510 (1965) and the rules changed. Griswold v. Connecticut established the constitutional right of privacy, a treasured and ineradicable right ever since, even though no such right can be found in the Constitution as it is written. It is hard to argue with a decision that sanctioned the use of contraceptives by a married couple – two consenting adults – behind closed doors, but it's harder to find that “right” in the words of the Founding Fathers. And labeling the decision permitting contraception as being supported by the constitutional “right of privacy” is hard for the layman to understand. It's established law now, however, and beyond question.

vii     Justice Ruth Bader Ginsburg, was quoted in the New York Times (August 25, 2013) as declaring proudly, and positively, that the current Supreme Court was “one of the most activist courts in history ... stunning in terms of activism.” It is clear that Justice Ginsburg, and others, favor an activist approach and the establishment of their own social agenda as law, whether it corresponds to the Constitution they're sworn to uphold or not.

viii     As I noted earlier, if the Supreme Court says so it's true and we're all bound by it. In a few weeks I'll discuss the issue of our obligation to the words and thoughts of those who preceded us.

ix       See footnote vi.

x         I'll also offer an essay on secular religion in the near future.

xi       June 24, 2013,

xii      The syndrome is not limited to boys, but that was the case decided.

xiii     What should be the policy for the inevitable gym showers?

xiv     Or obligated? Or should they be forbidden because that, too, would stigmatize others?

xv      And their ideas about what ought to be.

Go Roe Doe

 

(In honor of noting/Remembering with regret – choose one) the United States Supreme Court decisions of January 22, 1973 in the matters of Roe v. Wade and Doe v. Bolton, I am inserting, in place of my usual blog, an essay I wrote years ago on the subject. [It is, perhaps, of interest that Roeⁱ later decided that “abortion hurts women,”ⁱⁱ and Doeⁱⁱⁱ was apparently unaware that the suit was being filed, and she opposed it.^iv]

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Ending the Endless Argument

A Modest Proposal

for disposing of a troublesome Issue,

one dividing our Nation, yet pregnant with

the Potential for just and productive Resolution

to the Satisfaction of all Parties.

One need only sit among one’s fellows at a neighborhood establishment, satisfy himself with a little to ease the parched feeling in his throat, and dilate on the problems of the day to discover that too many of our citizens lack a tolerance for the opinions of others. One need simply read the daily tabloids and broadsheets, or their electronic analogs, to discover that the fifth estate is a significant contributor to the situation, although it is wont to ascribe its attention to such issues as the public’s interest or its “right to know.” And because by doing so they can distract their constituents from attention to matters of greater substance, our public servants confound these questions still further.

Of all disputes, the most difficult to resolve are those based on moral or religious principles, and those in which the emotions take precedence over a rational desire to reach some sort of accommodation so the parties can move on with their lives. Certainly, when political issues require resolution there are usually statesmen skilled enough to find common ground on which disputing parties can walk together; businessmen with interests in settling issues can generally negotiate an agreement that satisfies the needs of all sided; and attorneys make a living bringing disputants to settlements and framing compromises which are acceptable, if not a source of rejoicing, on all sides.

But absolute principles, the true arbiters of “Right” and “Wrong,” do not allow much leeway in problem solving. A typical example is the controversy concerning “women's rights” and “human rights.” Those who are “pro-choice,” who favor legal abortion see those rights as belonging to the pregnant woman, while “pro-life” advocates assign them to the unborn child. Since the issue is one of life and death, there does not seem to be much room for compromise -- at least in relation to individual cases. Because the dispute is one in which some organized religions have existing opinions, many are tempted to view those opposing their points of view as either religious fanatics attempting to impose their standards on others, or sinners who are violating universal standards of behavior; since it is always women who are seeking abortions, many who favor its availability see the opponents as sexists who are trying to control women’s lives. Such arguments are difficult to counter because they are very strongly felt and are based on belief, not reason.

Nonetheless, a solution must be found to a problem that has been polarizing our society for so long. As with all such solutions, it must be seen to meet the arguments of both sides to a sufficient degree that each can portray itself as at least partially victorious. To obtain such a result would seem to require the simultaneous acceptance and prohibition of abortion -- two contrary absolutes -- a difficult objective to achieve. What might be considered, however, is the establishment of specific situational criteria under which one or the other of these absolutes would be applied; in the one instance criteria would obtain in which unrestricted abortion would be permitted (perhaps even made mandatory), while in the other situation it would be prohibited under almost any circumstance.

If such standards were to be established, the greatest care and delicacy would be required to ensure their freedom from any hint of race or class bias. Indeed, they should not relate to religious or moral principles either. These are, in large part, the underpinnings of the existing arguments for and against and, since there is an abhorrence on each side of the other’s moral position, these issues should be set aside as a solution is sought. The fact that this is considered a “women’s issue” -- that, as many argue, perhaps with some justification, if men were to bear children they would support abortion rather than leading the fight to abolish it -- may provide a basis for finding a solution to the problem. While it would be facetious to suggest that the differentiating criterion might be the sex of the pregnant patient (prohibit abortion in men but permit or require it for pregnant women), sex might still provide the answer. Indeed, it has provided the issue.

In a democracy like the United States the majority sets the rules for all. That applies whether the community is as large as the entire nation or as small as the nine members of the Supreme Court. It is clear that the large majority of women favor abortion, and, consequently, it is appropriate that the majority speak for all. It is almost a certainty that a randomly chosen woman would agree with the opinion of the many. On the other hand, most of the males of the species may oppose such an act and a randomly chosen male would probably oppose abortion. It is not unreasonable, therefore, to extrapolate these specific points of view to a group who have not expressed themselves on the particular subject -- fetuses. We can safely assume that a female fetus would concur with her mother on the desirability of abortion, while a male fetus might question such a move.

Having clarified the issues involved, the solution becomes obvious, as soon as a pregnancy is diagnosed, appropriate testing should be performed to determine the sex of the fetus and all female fetuses aborted while the males are preserved. (That preference, though apparent in China, has not been universal. The Bible records Pharaoh’s preference for Jewish girls. However he preferred post-delivery family planning to achieve his goal.)

It would be naive to expect this proposal to be universally accepted even though a majority of citizens would surely support it. Indeed, there are many reasons to do so. These may result both from the decrease in female births and the relative increase in males -- a boon for females. In addition, it is immediately apparent that funds for abortion would be spent on a women’s health issue, an area to which everyone agrees far too little of our resources has been devoted. That the abortions will involve female fetuses exclusively skews the funding even more toward gender (dare I say “sex?”) equality in terms of health-care funding.

Another salutary effect of such an approach would be the availability of female fetuses for research projects, including stem-cell investigations. Currently there is a reluctance on the part of many to permit such research based on the fear that such sanction would encourage the performance of abortions. Since this new availability would be the result of a program aimed at limiting the number of abortions (although it might produce a larger number than are now performed) it could not be faulted on this count. And it should be specified that such research programs, which would deal only with female fetuses, would be well suited for the study of female health problems, to the complete exclusion of the study of diseases of males.

Equally salubrious, and resulting from the halving of deliveries (including c-sections), would be the immediate decrease in the incidence of pregnancy related diseases, death in childbirth, and post-partum depression. That would be followed almost immediately by the elimination of the abuse of female children, there being none to abuse. Presently the battery of women in general would end. There would also be a decrease overall in health-care costs as pediatrics, and later adult medicine and geriatrics, becomes less important.

An additional potential benefit which might be derived from the termination of half our pregnancies is suggested by the late Dr. J. Swift, a pioneer in the environmental movement who, in his own essay on the subject, urged the killing of children as a method of dealing with excess births in Ireland, and the utilization of their flesh as a renewable food source for other members of the population. Clearly his audience did not, at that time, recognize the wisdom of his counsel, and no improvement in the situation was obtained. Even today it is likely that few would accept the prudent suggestions he made since, though we are not at all reluctant to abuse them, we tend to shy away from the actual killing of children after they breathe their first. (It should be noted that this “shying away” is anything but universal and many children are actually killed by their parents and others.) As a consequence, we should be most unlikely to accept children as table fare. Indeed, the average American would probably be too delicate to taste even a fetus, though it might not be recognized as human life from its mere appearance. (There are two exceptions to this rule: One is the existence of cannibalism in some societies and among some of our own population who suffer from particular socialization disorders. Another possible exception is the processing and flavoring of the material for use as a substitute for the earthworms said to be incorporated into meat patties in some “fast food” establishments.)

Nonetheless, the idea of not recycling this high protein material would be anathema to most Americans. It would not be unreasonable, though, to deal with these byproducts of pregnancy much as we do with other materials which we manufacture but for which there is no market locally. We must export them as a means of properly reusing valuable resources, feeding the hungry in the Third World, and, of course, improving our balance of payments. It is a most propitious combination of benefits from a single act.

Returning to the results of the selective termination of female pregnancies, it should not be overlooked that the exclusive occurrence of male births would eventually result in increased homosexual behavior -- a consequence that would be repulsive to many of the men who currently eschew the sanction of abortion. There would, however, be a contrary result of the program which would more than satisfy the same super-masculine personalities troubled by what they would view as the weakness displayed by gay men. The greater number of males produced (for it is likely that there will be some compensation for the end of female births) would certainly increase the likelihood of that paradigm of strong, positive male activities, war. It would not be surprising if this were viewed as a signal benefit of the program, and a preference for sending gay men to the front might result.

Nonetheless, we could anticipate the continuation of the debate both in and out of the courts until the issue were finally resolved. What is, perhaps, most important about a solution like this one, a side-effect which might be overlooked at first glance, is that if it is implemented and made mandatory, we can, within a generation, eliminate both the problem and the debate. It would be wonderful, and perhaps unique in human experience, to be able to solve such a perplexing problem so quickly and completely as this.

It's certainly worth a try.

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Next episode: “Intermezzo” – Words, not music.

i     Norma McCorvey.

ii    The New York Sun, June 23, 2003.

iii    Sandra Cano.

iv    “Cano, who opposes abortion rights, has said that she was unaware that Doe v. Bolton was filed on her behalf.” (Kaiser Daily Reproductive Health Report, 11/12/01)