There’s been a lot of discussion here at Beliefnet and elsewhere about the variable impact of cultural issues like abortion in the current presidential campaign. And it’s safe to say most Democrats have concluded that Barack Obama’s prospects for victory depend in no small part on making the contest turn on economic rather than cultural issues.
But it’s not often explained that this presidential election will in fact have greater consequences than most in the past on cutural issues, preeminently abortion, for the simple reason that the U.S. Supreme Court is on the very brink of a conservative revolution that’s been waxing and waning for decades. To put it very simply, the next president will likely be in a position to shape the Court in profound ways. And if John McCain wins, the conservative revolution will prevail, beginning with the reversal of Roe v. Wade.
During a week of heavy airline travel, I finally got around to reading Jeffrey Toobin’s justly acclaimed account of recent developments on the Supreme Court, The Nine.
While usually described as an insider account of life among the Supremes, Toobin’s narrative really concentrates on the steady development, and chronic frustration of, the activist conservative legal movement that began back in the 1970s, which has always been obsessively focused with the goal of overturning Roe. For these determined conservatives, the great outrage of recent decades has been the accession to the Supreme Court of “liberals” appointed by Republican presidents, ranging from Warren and Brennan by Eisenhower, to Blackmun (author of Roe) and Powell by Nixon, to Ford’s one appointment, Stevens, to Kennedy and O’Conner by Reagan, and to Souter by Bush 41.
As Toobin explains, the real watershed moment for conservative legal activists was their successful effort to force the withdrawal of Bush 43′s nomination of Harriet Miers, and the substitution of Samuel Alito, epitomizing their refusal to trust a conservative president to appoint conservative justices, and their demand for unambiguous proof that a prospective Supreme would be willing to reverse past “liberal” decisions, especially Roe.
In an particularly fascinating chapter of The Nine, Toobin shows how very close the Court came to reversing Roe back in 1992, when the defection of O’Conner and (more surprisingly) Kennedy produced the Casey decision that explicitly reaffirmed Roe on a 5-4 vote. Now O’Conner’s gone, and in two decisions involving legislation banning so-called “partial-birth abortion,” Kennedy’s shown himself willing to accept all sorts of legislative undermining of Roe. Three Justices–Thomas, Scalia and Alito–would definitely support an immediate reversal of Roe, and so would Roberts if the votes were there.
That’s why the antiabortion movement specifically, and the Christian Right generally, have made up their minds that John McCain’s election is transcendently important. He’s gone far out of his way to reassure them on judicial appointments–most notably in a May speech at Wake Forest University that adopted every imaginable conservative “dog whistle” on the subject, but also in his Saddleback Forum remarks. The selection of anti-abortion ultra Sarah Palin as McCain’s running-mate was the clincher.
As Toobin points out, the three Justices most likely to retire during the next four years are Stevens (who is 88 years old), Ginsburg (who has chronic health problems) and Souter (who’s reportedly been wanting to retire for years). These are three of the four “liberals” currently on the Court, and all of them have pretty evidently been hanging on in hopes that the right kind of president would be elected to appoint their successors.
Add it all up, and it’s as certain as anything in politics that the election of John McCain would produce a Supreme Court that will reverse Roe v. Wade, and also consolidate the conservative judicial revolution on a vast array of other subjects, from privacy and civil liberties to employer-employee relations. Indeed, we’d probably have the most judicially active conservative Supreme Court since the 1930s, when the Court battled to block much of the New Deal.
Conservatives understand this, but I’m not sure progressives really do. In the limited realm of abortion policy, it’s pretty clear that anti-abortionists have made gains in recent years due to a status quo that protected most abortion rights, making it difficult for pro-choicers to mobilize voting decisions in their favor.
That could all change this year, and one of the toughest but most important decisions by the Obama campaign will be about whether to make that clear.
posted September 17, 2008 at 2:31 pm
Ed Kilgore: “And if John McCain wins, the conservative revolution will prevail, beginning with the reversal of Roe v. Wade.”
Halloween must be coming early this year, judging by Ed Kilgore’s latest post.
Cultural conservatives don’t expect a reversal of Roe v. Wade if John McCain is elected. That’s just scare-mongering.
However, most of us fear the consequences of an Obama election and what that means for the promotion of a “culture of death.” We would see: (1) the repeal of the ban on partial-birth abortions; (2) back-tracking on parental notification requirements; (3) threats to faith-based institutions (hospitals, adoption agencies) that insist on operating according to orthodox moral theology; (4) attacks on traditional marriage and family; and, (5) legalization of infanticide (judging by Obama’s behavior as an Illinois state senator).
Indeed, cultural conservatives are energized in this election by the prospect of an Obama-Biden election and the nomination of more S.C. justices like Stevens, Souter and Ginsburg.
posted September 17, 2008 at 3:59 pm
OOoooooh I’m scared
if Roe v. Wade gets overturned then abortion will stop being a federal issue and will become a State issue. Do you really see individual states overturning the legality of abortion. Others writers for this blog have already noted that public opinion makes it unlikely that the State legislatures will make abortion illegal.
You know, for abortion being such a “religious right” issue, you lefties are making an awfully big deal about it.
posted September 17, 2008 at 5:19 pm
When you are broke, out of a job and living in a cardboard box, you can thank the Courts that the unborn will be “safe”. I am tired of the abortion issue. We are in the most critical economic time since the great depression and all you want to talk about is pro-life.
The Supreme Court won’t be putting food on the tables of all these families. We need more solutions to many problems that the lax GOP Government has allowed to happen under the so call free market experiment. Will we have a Court that will uphold anti trust laws and jury verdicts that punish guilty corporations or are we only concerned with the abortion? Please can we talk about the issues that effect how we are to survive in a world that is riddled with spiritual and fiscal corruption.
posted September 17, 2008 at 9:38 pm
It is quite unclear what Reaganite might mean by his “‘culture of death’.” Apparently the scare quotes he puts around the term indicates that it has some curious meaning, only it is a puzzle what that might be.
It is used in the context of a discussion of anti-abortion. Whether abortion is legal or illegal in the USA is unlikely to have a significant impact on the frequency of the non-spontaneous deaths of fetuses carried by pregnant women. It would likely increase the number of pregnant women who die from incompetent abortions; that happened a good bit in the pre-Roe v. Wade days. So if one is concerned to minimize the number of deaths of human entities one should work to keep Roe v. Wade.
After seeing mention of a culture of death I naturally expected some criticism of the penchant of one candidate or the other to pursue preemptive wars that kill lots of people on both sides, or to try to justify some war we are already involved in that has been killing tens of thousands of human beings. Those lives are all just as sacred in God eyes are your life or mine. But not that was apparently irrelevant to what was meant by “‘culture of death’.”
I also expected to see some attention to the poverty, starvation, diseases that are killing millions of people every year in this world. Clearly those who ignore that sort of phenomena are caught up in a culture of death–regarding the deaths of those millions as unimportant politically or otherwise. But that too was apparently irrelevant to what was meant by “‘culture of death’.”
The deaths of thousands of children and adults in this country due to pollutants poured into the atmosphere, and waters, by under regulated factories and plants should be attended to by those concerned about our culture of death. One would expect to see them working to prevent such deaths. But that did not seem to be relevant to what Reaganite meant by “‘culture of death’.”
So what could be coherently attached to that phrase as used by Reaganite that would render it meaningful?
It is clear that what the phrase “culture of death” straightforwardly means raises number of very important political issues that should be addressed in this campaign. It is also far from clear that Reaganite is interested in any of them.
posted September 17, 2008 at 9:41 pm
Obama says he will not put a litmus test on Supreme Court justices. He has said over and over that he wants to have support systems that will make it easy to choose life. He wants to CHANGE THE CULTURE. For example, with health insurance, women who couldn’t afford a hospital delivery can have one. There will be support once the baby is born…the carrot works better than the stick.
On the topic of infanticide, look on this very website: blog.beliefnet.com/stevenwaldman/2008/09/does-obama-support-the-killing.html. Obama does not support infanticide.
posted September 17, 2008 at 10:31 pm
Reaganite in NYC,
Obama attacks traditional marriage and families? You ought to take a look in the book that supposedly describes the “traditional family”, the Bible. One-man one-woman Adam and Eve style marriage is hardly the only type of marriage allowed and sanctioned by God in the Bible. Many of the Old Testament heroes and patriarchs were polygamists (King David, King Solomon, Jacob, Moses, etc.) and some of these polygamists had concubines (Solomon, David) or slaves they had sexual relations with (Jacob). Another type of marriage that occurred in the Bible was a levirate marriage, where a man would marry his deceased brother’s widow so she would produce an heir for the dead brother (i.e. the story of Onan). God never spoke against any of these alternate marriage structures in the Bible. It is true that God was not happy with Solomon’s wives, but it was more the fact that he had foreign wives who wroshipped foreign gods, not that he had multiple wives in and of itself. None of this necessarily mean God or the Bible is down with gay marriage, but it just makes you think a bit differently about what the Bible actually says about marriage and family, and the differences between our modern society and that of the ancient Hebrews.
Also, monogamous heterosexual marriage is not the only form of “traditional” marriage in the world. Anthropologists estimate that up to 75% of the world practices polygamy, and most Muslim countries allow men to marry up to four wives in accordance to Islamic law. Many traditional tribal cultures also practice polygamy. It is common in Himalayan societies for a woman to marry multiple brothers of one family for property and inheritance reasons.
It’s not that I am condoning polygamy, but it does not seem too much of a stretch to give legal recognition to a committed and monogamous homosexual relationship when much of the world thinks it’s “normal” for one man to be married to multiple women (including some Christian tribes and societies in Africa). And you definitely don’t get a picture of the Ward and June Cleaver type of family as the only acceptable type of family by reading the Bible.
The next time a religious person says “We must uphold traditional/Biblical marriage” I’ll say “Great! Does this mean I can have 700 wives like King Solomon did?”
posted September 17, 2008 at 11:02 pm
I tell my kids that a generation or two after gay marriage is okayed, when the stigma is completely gone, EVERYONE will want to marry gay, because it is so much easier to get along with the same gender!
I know the topic here is abortion, but in response to PhoenixOrion, here is a paraphrase from an article by Rabbi Shmuley Boteach on his website:
The important social truth demonstrated by heterosexual marriage is that opposites can be orchestrated together as one indivisible whole, and it gives the lie to those who believe that war and discord between people on earth is inevitable. When organisms as different as male and female are drawn together, marry and can work to create a single unified life, it provides a contrast to the tendency toward an “us versus them” mentality in human relations. Homosexual marriage, even when genuinely loving and committed, sends the message that like only meets like and those who are very different have no real appeal or attraction to us.
posted September 18, 2008 at 2:56 am
Bonnie,
As much as I respect your views, it seems to me that you draw some odd conclusions about gay marriage. For instance, it is completely unfathomable that most heterosexual people will want to marry someone of the same gender after gay marriage is universally accepted and the stigma associated with homosexuality has disappeared. I mean, it might be easier for most people to get along with people of the same sex, but I doubt that many heterosexuals would get aroused by a member of the sme sex. I am a heterosexual male, and I would only ever want to marry a woman, whether I lived in Massachusetts or Texas (I currently live in Florida, where homosexuality is accepted in some parts of the state and reviled in others). There is just no way I could ever be sexually attracted to another man, no matter what country or culture I lived in, or how well I got along with the man in question. It’s not like straight couples stopped getting married in Massachusetts and California after they started letting gay couples get married there.
Regarding Shmuley Boteach, he is rather liberal on the issue of homosexuality for an Orthodox Jewish rabbi. He opposes gay marriage, but supports civil unions (with many of the legal and secular benefits of marriage) for gay couples. He believes that homosexual unions cannot be equated with heterosexual unions, but he also says that homosexuals who have no inclination towards the opposite sex should form monogamous, committed relationships with members of the same gender. What he’s saying is while they are not at the level of committed, monogamous heterosexual unions, committed and monogamous homosexual unions are the best option for homosexuals, as committed relationships for homosexuals are a far better option than sexual promiscuity.
posted September 18, 2008 at 3:19 am
Also, what I posted earlier was about how many different types of marriages appear in the Bible, not just monogamous heterosexual marriages in the Adam and Eve mold. Though Shmuley Boteach has an article where he discusses why monogamy is superior to polygamy, I have never heard a Jewish or Christian theologian adequately explain why monogamous heterosexual marriage is the only acceptable form of marriage, despite many types of marriage (including polygamy and levirate marriage) appearing in the Bible, and the Bible never expressly condemning these alternative marriage structures. I don’t recall Shmuley’s anti-polygamy discussing why polygamy was OK in the ancient Israelite society but not OK today, but maybe I need to take another look at it. It is just exasperating when conservatives and religious people say that gay marriage threatens “traditional marriage”, when monogamous heterosexual marriage is far from the only marriage structure the world has ever known, as polygamy and other alternate marriage structures have been practiced by societies all over the world for thousands of years. And some religious people try to make the Bible seem all wholesome and vanilla, when it’s really not.
posted September 18, 2008 at 2:50 pm
PhoenixOrion:
Your response to my 2:31 post yesterday demonstrates an obsession with homosexual marriage and considerable skill at “cherry-picking” passages of Holy Scripture.
You totally overlook the New Testament and you ignore the thrust of Mosaic law in the Old Testament — both of which express a clear preference by the divine for monogamous heterosexual marriage open to the transmission of human life.
posted September 18, 2008 at 3:28 pm
Reaganite,
It is true that liberal and moderate Christians and Jews may “cherry-pick” passages of the Bible, but so do conservative Christians and Jews. To their credit, conservative Christians and Jews may cherry-pick less than their liberal and moderate counterparts, but they still cherry-pick. If Christians and Jews followed the entire Bible completely literally and didn’t cherry-pick at all, they would stone people to death for working on the Sabbath (Exodus 31:15), stone non-virgin brides to death on their father’s doorstep (Deuteronomy 22:13-21), and kick women out of church for saying hello (1 Corinthians 14:34).
It’s not so much that I am obsessed with gay marriage, it’s just that it irritates me when people say that allowing gay couples to marry would threaten traditional marriage, because it is not an anthropologically, sociologically, historically, or biblically accurate position that monogamous heterosexual marriage is the only form of traditional marriage the world has ever known. And I don’t believe that the government has the right to define marriage (which is a religious institution) or legislate morality. Well, the government does have the right to legislate morality when it comes to people harming others (through prohibition of such crimes as murder, rape, and theft) but I don’t feel that the government should criminalize “victimless crimes” or “vices”.
And the Mosaic law may express a preference for monogamous heterosexual marriage, but it never condemns polygamy or other alternate marriage structures. Some believe that Moses himself was a polygamist. And when King David had multiple wives and concubines, the Bible never spoke against that. It only condemned David when he had sex with another man’s wife, Bathsheba (2 Samuel 11:1-5).
posted September 18, 2008 at 3:35 pm
And similarly, the New Testament may express a preference for monogamous heterosexual marriage (or celibacy, in some cases), but it never expressly condemns polygamy as wrong or sinful. Yes, the Apostle Paul did say that “each man should have his own wife and each woman her own husband” (1 Corinthians 7:2). But the Greek word for “own” in that sentence doesn’t mean “one and only”. Marriage can still be considered a sacred covenant between one man and one woman. It’s just that the man can have several simultaneous covenants.
And it just doesn’t make that much sense to me that if the Bible condemns polygamy, that many of the Bible’s greatest heroes (Kings David and Solomon, for instance) were notorious polygamists and God never condemned them for it.
posted September 18, 2008 at 4:21 pm
The natural law will tell you that male and female bodies are designed exclusively for each other. Only men and women are compatible. Let nature tell you what the proper order is. Marriage is meant to bring about life. Sex is a gift from God that is sacred and it is not meant for our selfish fulfillment. I suggest that you read Theology of the Body Explained by Christopher West. This book is very clear on the true purpose of marriage and family.
posted September 18, 2008 at 7:06 pm
My daughter and her friends are dating young men in college. There is much confusion and many are referring to themselves as bisexual. This is a place my generation would never go; just one generation ago, if a girl had a bad breakup, she’d lick her wounds and try again with another guy. Nowadays, some women in college who have a bad breakup are deciding they “must be gay” and trying again with someone of the same gender! There is no social impetus favoring heterosexuality.
I believe that when so many women are on the pill, their bodies in a “faux pregnancy” mode, they can barely identify their own sex drives. I can envision women living with women and having male/female affairs on the side, especially if they are wanting children. Even women who feel they are 100% heterosexual will have no particular reason to live with a man. Again, it’s easier to live with a woman, and you can even borrow her shoes…
I’m sorry I have no direct experience with gay men, although Boteach says they outnumber lesbians…
For the record, Rabbi Boteach blames divorce for the decimation of marriage, saying to blame homosexuals is a “boldface lie.”
posted September 18, 2008 at 8:14 pm
Boteach says that American men are “broken,” in that they are career-obsessed and participants in a culture that hates women. If true, I say why wouldn’t women be looking for alternative lifestyles, biology be damned?
posted September 19, 2008 at 8:48 am
If you expect some clear thinking from Reaganite, you’re in for a disappointment. But I’m sick of the culture wars; they are completely pointless. Here is the bottom line: Are Republicans going to help me get affordable, comprehensive insurance? No. Are the Republicans going to increase regulation so that corporate greed isn’t allowed to run unfettered as it has in the past 8 years? No. Are Republicans going to stop American jobs being shipped overseas so that corporations can exploit foreign workers for huge profits, avoiding more stringent American employment laws? No. Are Republicans going to look for ways to decrease our carbon footprint and work towards an oil-free economy? No. Are Republicans going to protect the interests and the dignity of the poor, the minorities, and the children of the poor? No. Are the Republicans going to end this war that is funneling billions of tax dollars that are needed elsewhere into the bottomless hole of an unwinnable war? Hell no. I could go on and on.
This country has seen enough of Republican leadership, if you can call it that. It’s time to clean house and bring back the sanity.
posted September 19, 2008 at 9:00 am
“The natural law will tell you that male and female bodies are designed exclusively for each other. Only men and women are compatible. Let nature tell you what the proper order is. Marriage is meant to bring about life. Sex is a gift from God that is sacred and it is not meant for our selfish fulfillment. I suggest that you read Theology of the Body Explained by Christopher West. This book is very clear on the true purpose of marriage and family.”
More fuzzy thinking from the right. You claim natural law as the basis for heterosexuality, but then tack on Christian marriage and/or monogamy to that proposition, which is complete baloney. You can’t have your cake and eat it too. If we are to base our lives on natural law, then there shall be little fidelity and exclusivity of partners, as 99% of species mating habits will show you. The concept of “Christian marriage” in the West is a social construct reinforced by centuries of convention and habit. The yearnings of nature, however, are always threatening it. So let’s stop playing these kinds of word games. If you want to talk about natural sexual behavior, then let’s do that. But if you are talking about marriage – which is a social convention – then you’re speaking of something quite different.
Well, the other thing is that just because 90% of the human species exhibits what you would call “natural” yearnings for the opposite sex, that doesn’t necessarily mean that the other 10% don’t have “natural” yearnings for the same sex. There have been no definitive studies that have proven homosexuality to be 100% choice, and much research indicates that people most likely are hardwired to be gay, just as you are hardwired to be hetero. So that’s “nature” for them too, isn’t it?
posted September 19, 2008 at 9:39 am
Warren Cheswick: “If we are to base our lives on natural law, then there shall be little fidelity and exclusivity of partners … If you want to talk about natural sexual behavior, then let’s do that.”
Apparently, Warren Cheswick hasn’t a clue what “natural law” means and is confusing it with “natural sexual behavior.” Let’s not waste time tutoring Warren on “natural law.” Warren, spend some time and look it up yourself.
posted September 19, 2008 at 10:41 am
Nice try, Reaganite. I wasn’t the one who used “natural law” in this manner – that was Viv, dude. Once again you are really good at changing the subject and not very good at actually reading what someone writes. Viv tried to use “nature” (calling it “natural law”) to assert that homosexuality is “unnatural,” yet then tried to apply the same criteria to monogamy and fidelity, which is contradictory. And anyway, if you look at my assertions about the subject, you’ll see that I used the phrase “natural yearnings,” which demolishes your silly accusation that I don’t know what natural law is. I’ve read Aristotle, Aquinas, Hobbes, Rousseau, Locke, and others. Have you? Just more smoke and mirrors to cover up shoddy logic and lack of substance from Reaganite, who only reinforces the right’s reputation as Rovian hack job artists.