Friday, November 21, 2008 - Posts
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I hate to say this, but I'm not a fan of a key piece of the challenge to Proposition 8 that same-sex marriage advocates are bringing in the California Supreme Court. By all means, ask the court to recognize the 18,000 same-sex marriages performed since it ushered in legalization last June. Laws shouldn't change retroactively, with marriages approved by the state one day and shunned the next. It's true that this case doesn't fit perfectly into the constitutional doctrine based on what's called the ex post facto clause, which prevents laws from changing up on people after the fact. (That's because traditionally, ex post facto applies to criminal laws.) But if ever there was a time for expanding that doctrine, for fairness' sake, this is it.
The part of the court challenge that makes me skittish is the claim that Prop 8 is simply unconstitutional because it's a major revision to California's constitution, instead of just an amendment, and so the legislature has to separately approve it. This sounds like legal jabber (a revision vs. an amendment--huh?), and I fear that the political price for a ruling like this would be too high. Last summer, the state supreme court took a big step by legalizing same-sex marriage. Now, like it or not, the voters have rejected that ruling. I'm not a fan of state referenda--they make it way too easy to pass bad laws, and California has suffered from them in the past. (Remember Prop 13, which decimated school funding?) But if you have a referendum system, you have to live with it. Or at least you don't turn to the branch of government farthest from the will of the electorate to overturn a law born of the process that's closest to the will of the government. To get out of the Prop 8 fix, California needs another amendment that reverses it. The current challenge is the right battle, but the wrong tactic.
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Everyone lusts after stories of bad mothers—the worse, the juicier. As you might recall, in the late 1990s, at the peak of the Clinton-era culture wars, a moral panic arose over "dumpster" or "toilet" babies—infants abandoned by panicked, often teenage moms who had told no one they were expecting a child. In the spring of 1997, the nation was riveted by an especially horrific case. In New Jersey, 18-year old Melissa Drexler gave birth to a baby boy at the senior prom, stuffed the child into a trash bin, and returned to the dance floor.The baby died, and Drexler served three years in prison.
"Safe haven" or "baby Moses" laws emerged as a response to such crimes. They allowed parents to abandon their children to the state at designated locations without being charged with a crime. The pro-life movement, which heartily supported the laws, contended that baby abandonment was on the rise because Roe v. Wade had eroded the "culture of life." That is doubtful at best—the abandonment of disabled, weak, and, in many cultures, female newborns has taken place throughout human history. Nevertheless, it's a good thing to provide a safe, anonymous way for struggling parents to turn an infant over to the state. Though safe havens are used extremely rarely, there's no reason for them not to be there.
But these laws had unintended consequences. As the New York Times reported last month, after Nebraska passed a safe haven law in July, officials were shocked that parents were abandoning children as old as 17. Sometimes the parents were suffering from mental illness; often the children were. Many of the families were uninsured or underinsured. But whatever the cause, in the midst of a financial crisis, and in a state with some of the lowest spending on mental health and child welfare services, dozens of parents seemed so unable to cope that they were ready to abandon their kids.
Today, Nebraska responded by amending the safe haven law to apply only to babies younger than 30 days old. And while that will prevent these other families in crisis from coming out of the woodwork, it will do nothing to address the underlying problems of poverty and health care. Just a reminder that while we obsess about freakish stories in our fervor for identifying society's "worst mothers," bigger problems are often hidden in plain sight.
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XX Factor contributors Emily Bazelon and Melinda Henneberger appear on Bloggingheads.tv today to discuss all things Obama and Hillary and also talk a little about abortion.
In this first clip, Emily and Melinda talk about whether Hillary might be too much of a neocon to be President Obama's secretary of state, and how unfortunate it would be if Bill Clinton's finances torpedoed his wife's shot at the job.
And here, Emily and Melinda discuss the seemingly outlandish claim that Catholic hospitals would be forced to shut down under Obama, if the Freedom of Choice Act passes. But Melinda's done some digging, and the act could require Catholic hospitals to perform abortions. And she says that church leaders could decide to shutter the hospitals rather than sell them.
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