DOMA and Proposition 8 decision impacts

Congratulations to the people of California and to gay couples everywhere in the United States on this great day!  This is one of the reasons I like living inside the beltway (although the MS-NBC coverage would be the same no matter where I was).  In DC, Congress can now do nothing to hurt the rights of LGBT couples.  There are four remaining issues to address in the wake of these decisions.  

The first is that although it was not at issue in this case, the plain language of the Constitution in Article IV is very clear that states must recognize the actions of other states, including marriages.  The repeal of DOMA means that the provisions letting states not do so are repealed and any judge would be hard pressed to rule against a married gay couple seeking to file their taxes jointly or claim inheritance rights. They might even mean that gay couples can demand marital rights in all states based on the strong decision of the San Francisco Federal District Court in Perry.

The second impact is that by not ruling on the merits of Proposition 8, it is less likely that there will be a push to a national constitutional convention to nullify today's decisions, although it is still possible.  The dream of a right wing convention is dying as fast as the generation who would seek to dominate is, which takes a Human Life Amendment permanently off the table as well.  (Frequent  readers know that a HLA is not needed because abortion can be and is federally limited by statute, but not at the state level, because of the enforcement mechanisms of the 14th Amendment).

The third impact is on the Church.  The DOMA repeal makes it harder for the Church to discriminate against gay employees as employees (although their rights to regulate those in ministry are not changed).  It is quite illogical for the Church as employer to recognize heterosexual civil marriages and not homosexual ones - indeed, this shows that the impulse to do so lies not in morality but in bigotry.

The fourth impact is also on the Church.  The equal protection language and the spread of legal gay marriage makes it more likely that the nature of marriage will change.  As I have previously written, the Church's interest in preserving traditional marriage had as much to do with preserving its own patriarchy in relation to the people in the pews as it does the sexual relations of its gay members.  This issue also includes the practice of blessing marriages that would not otherwise be recognized by the Church formally in a private ceremony.  With a largely gay clergy, this will accelerate, especially as families demand such recognition.  Of course, the Church cannot use the preservation of its dominance over its own members as a legal reason the oppose marriage in Court - that is simply the Church's problem and this generation will not allow the patriarchy to hold sway much longer - especially with a Pope like Francis who puts humility over power.

The House abortion bill and a progressive Catholic response

Today the House passed a bill banning abortion at 20 weeks.  The Democrats have claimed the bill is unconstitutional and is a violation of Roe v. Wade.  Technically they are correct, however the right to privacy in Roe is conditional upon the fact that the fetus is not recognized as a person until viability - with the Court settling on viability because Congress had set no other time for the start of legal personhood so the default had to be the plain language of the 14th Amendment, which starts life at birth.

The 14th Amendment, however, also includes an enforcement provision.  If enforcement can reasonably include interpretation, Congress is certainly within its rights to set some time earlier than viability - although it would have to deal with any equal protection issues which arise by doing so.  By settling on 20 weeks, which is well past the point where most natural miscarriages occur, they avoid most of these issues, so the Bill would likely pass constitutional scrutiny, just as the Partial Birth Abortion Ban did at the federal level, even though the states could not do so on their own (just as they cannot go to 20 weeks on their own).

Still, the Republicans are not serious.  A more serious bill would have been 23 weeks and would have included an exception for the health of the mother when the child is diagnosed with a defect which will end its life before birth.  In such cases, the quicker the pregnancy is terminated, the less risk for the mother.

A serious bill would also make it easier to not only support women in having their children, but also support families financially regardless of the income level of the primary bread winner.  To do so would require a $500 a month tax credit for each child paid with wages or TANF benefits, with a matching state credit.  This would provide enough funding, especially if indexed for inflation, to afford an additional child, thus removing the main incentive for abortion, which is financial pressure caused by expanding the family.  Any abortion bill should also include this provision.

This would unify the pro-life and progressive wings of the Church. Indeed, the bishops should insist on such a provision.  To not do so would be heartless, as an abortion ban without such a provision would lead to more dangerous back alley procedures.  Indeed, there should be a provision that late term abortions be conducted in hospitals using induction.  Catholic hospitals should offer these services, as in such cases the child could be baptized at birth before being allowed to die without extraordinary measures.

There is another reason the GOP is not serious on this issue.  If they were to work out a deal with Obama their base would freak out, while the centrists would consider the issue solved.  The mushy middle on abortion would become solidly for the new status quo.  Most importantly, the ability to turn out the base on what is considered a settled issue (and to raise money from them) would be all but ended.  Indeed, there would be no reason for the fundraising and GOTV machine, which includes the Catholic clergy, that is active on abortion to continue its relationship with the Republicans.

Let me also point out that, although the President has promised to veto this particular bill, he did say in the third debate with Senator McCain in 2000 that he would be willing to revisit the Partial Birth Abortion Law so that other procedures might also be banned - however he might hold fast to a 30 week limit.

This is, of course, the wrong time for this legislation to be considered seriously.  If Obama were to keep is promise to revisit this issue and start negotiating with Representative Blackburn on details he would not only have a staff rebellion but would also hurt Democratic turnout in 2014.  This is the kind of legislation best passed in the final year of a presidency.

The mind, neuroscience and the beginning of life

Tomorrow at noon, if you are a C-SPAN BookTV watcher, be sure to catch a rebroadcast of Afterwords with Sally Satel, "Brainwashed: The Seductive Appeal of Mindless Neuroscience," hosted by Dan Vergano, USA Today Science Reporter.  It contrasts nicely with a few of the episodes of Through the Wormhole with Morgan Freeman on the Science Channel, which talk about when life begins as well as what we have found out about the mind from neuroscience.  Both of these also relate to How to Create a Mind: The Secret of Human Thought Revealed by Ray Kurzweil.

I confess I have not read Dr. Satel's book, but can relate from the broadcast that she regards neuroscientists making conclusions about metaphysics as going a bridge too far.  This is the concluding chapter, however both the book and the C-SPAN program are worth watching and reading.  I would agree and disagree with her on this.  The finding that the actions of the brain occur before the reflections of consciousness have profound metaphysical impact - just not the impact that most neuroscientists, programmers or indeed ethicists have in mind. 

Both Morgan Freeman and Ray Kurzweil talk a bit about the beginning of life as well, with Morgan showing a few options, including life as beginning at conception, life beginning at the ability to be conscious and personhood beginning at about age five, when children become morally conscious.  He also talks about learning machines.  Kurzweil addresses the issue of the begining of life and abortion with the options of conception and the ability to be conscious.  Usually those who are pro abortion (not just pro choice) believe that consciousness in the womb is when life begins, while the pro lifers belive that fertilization is when life begins.  Kurzweil repeats this point.  

Kurzweil's main thrust is to describe the inevitability of machine intelligence which can be used to both supplement human intelligence and become conscious in its own right.  The book is also well worth reading, but take it in small chunks.  As an aside, in his Epilogue, he talks about the destiny of mankind in injecting human intelligence into the larger universe as an inevitability, especially if we can enhance ourselves with AI.  As a fan of Star Trek, it sounds to me like he is proposing we become the Borg.  I'm not sure I like that idea.  However, I don't think this will happen.  Let me explain why.

What neuroscience seems to show is that consciousness is not what it is cracked up to be.  Rather then being sentience itself, it is merely the experience of being sentient.  By sentience, I mean the ability to make moral choices, including the ability to choose evil.  In the world of artificial intelligence, I am fairly sure we don't want to give computers or the Web the ability to make such choices for us, which is why some of what Kurzweil and Freeman say will never happen.

Sentience happens in the brain.  Some would call such a contention materialistic.  I beg to differ.  The metaphysical implication is that the body and spirit are entirely intertwined - and not just in the brain.  Rather, the soul is the life force that stops the cells from entropy.  Once that soul is gone, entropy proceeds, starting with the brain (some organs life longer, so transplant surgery is possible).  

The beginning of life, then, would be that point where the life force begins to organize the human being - and that point is gastrulation.  Before that time, you can cut an embryo in two and make two people.  During the time between fertilization and gastrulation the maternal DNA (and therefore the maternal soul) entirely control the development of the child.  After gastrulation, the genes of both parents are equally responsible for development.  Until gastrulation, it is not possible to know whether the DNA from both parents is even compatible in that zygote, which is why most blastocysts die at this point.  Unless Heaven is populated with bad blastocysts, life cannot begin at conception.

This conclusion is both a defeat for the pro-life side and would be considered a victory if adopted - although it will only be a moral victory.  There is more to ending abortion than simply proving that post-gastrulation embryos have a soul.  Starting life at that point would turn each miscarriage into a public event - and that will never be allowed to happen in this country.  If abortion is to be decreased, the answer is economic - however that is the subject of a different column.