Marriage law: Defined by people, not courts

		Eye on the  Capitol  John Huebscher

According to a story I read once, the late Justice William Brennan was explaining different theories as to how jurists interpret the meaning of the words in the U.S. Constitution.

After reviewing several of these theories and the methods they implied, Brennan said, "In the end, the Constitution means what five of the nine justices say it means."

Last week four members of a seven member state Supreme Court decided what the Constitution of the Commonwealth of Massachusetts means in terms of equal protection under the laws when they ruled on the Massachusetts law that denies same-sex couples the right to marry.

That decision has ignited a debate over marriage. But it will also renew a two-centuries debate over the role of the courts in American government.

Role of courts

Sometimes courts will invalidate a law because it is vague or poorly written. This was not the case with the law defining marriage in Massachusetts.

The Court's opinion, written by Chief Justice Goodrich, explicitly acknowledged that the Massachusetts law defining marriage was not ambiguous. Indeed, in describing the statute in question, the Court held, "the only reasonable explanation is that the legislature did not intend that same-sex couples be licensed to marry."

The justices in Massachusetts did not invalidate the law because it was vague. They struck it down because they believed it ran counter to the guarantee in the state constitution that citizens be treated to equal protection of the law.

As Justice Goodridge stated, "we owe great deference to legislators to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues."

Almost, but not quite.

'We the people'

The U.S. Constitution, the Wisconsin Constitution, and the laws enacted by our Wisconsin legislature differ in structure, purpose, and other important respects. But they have one crucial thing in common. Each begins with the words "We, the people."

This is the ultimate genius of our system of government and ultimately our shield against tyranny or ignorance. For the final authority on all vital questions facing society rests with the entire citizenry, each with the capacity to grasp what Jefferson described as "the laws of Nature and of Nature's God."

No government decision, whether made by the executive, the legislature, or the judiciary is final. For the people can undo each one. The people can use the ballot at regularly scheduled elections (as opposed to one-issue recalls) to replace presidents, governors, and legislators whose actions they deem unwise or unsound. In some states they can use the ballot to replace justices of their courts.

People's decision

Where justices are not elected, as in our U.S. government, the people can amend the Constitution when they believe it has been misinterpreted. The 13th Amendment to the U.S. Constitution abolished slavery less than a decade after the Supreme Court ruled that Congress lacked the power to limit slavery in the territories.

Several years ago the people of Hawaii amended their state constitution after the Supreme Court in that state issued a decision similar to that made last week by the justices in Massachusetts.

In both instances the people decided that they - not the courts - would determine what their constitution meant.

Now, the people of Massachusetts and their elected representatives will determine what their constitution means as they discern whether to amend it. Over time, it may fall to the rest of us to do the same thing as regards the U.S. Constitution.

And that is how "we the people," acting through the nation's founders, designed it, Justice Brennan's views not withstanding.

John Huebscher is executive director of the Wisconsin Catholic Conference.

Latex and life: Use of condoms in AIDS prevention

		The Catholic  Difference  George Weigel

Cardinal Alfonso López Trujillo, the Colombian president of the Pontifical Council for the Family, has been no stranger to controversy throughout a long, distinguished, and sometimes fractious ecclesiastical career.

Yet the bludgeoning López Trujillo took in the days when he challenged liberation theology for the soul of Latin American Catholicism seems mild in comparison to the opprobrium now being heaped on him for daring to suggest that condoms are not dependable in preventing the transmission of HIV/AIDS.

Cardinal's remarks

Speaking on Vatican Radio, Cardinal López Trujillo argued that, because the HIV virus "is roughly 450 times smaller than the spermatozoon" and condoms have been known to fail as contraceptive devices, men and women took enormous risks if they entrusted their lives to latex in the belief that "safe sex" is, in fact, safe.

The chief scientific adviser to the U.N.'s AIDS program promptly accused the cardinal of conducting a disinformation campaign. "Latex condoms are impermeable; they do prevent HIV transmission," insisted Dr. Catherine Hankin.

Dr. Rachel Baggaley, a consultant to the British charity Christian Aid, insisted that "correct condom use" reduced the risk of HIV infection by 90 percent and charged that the cardinal's remarks were "dangerous."

I've got no scientific standing to settle the argument about latex and its permeability or impermeability. But it strikes me that the cardinal's critics have got some questions to answer, too.

Like Russian roulette

For the sake of argument, let's stipulate that the 90 percent "success rate" claimed for latex condoms as an AIDS-prevention device is accurate.

Imagine your teenager assures you that playing Russian roulette is "safe" because the gun he and his friends are using has 10 chambers and only one is loaded.

Is this "safe shooting"? Or is it suicidal behavior? Do you encourage the teenager to play single-bullet Russian roulette, or do you grab the gun away from him immediately?

Uganda's success

Critics must contend with the fact that the most successful African AIDS prevention campaign is in Uganda, where a national "ABC" program stresses abstinence and marital fidelity as "social vaccines" against AIDS, with condoms recommended only as a "last resort."

Uganda's national infection rate has been reduced from 21 percent to six percent among pregnant women.

As President Yoweri Museveni of Uganda puts it, he and his people refuse to believe that "only a thin piece of rubber stands between us and the death of our continent."

Uganda's highest priority in AIDS-prevention, the president argues, is to "convince our people to return to their traditional values of chastity and faithfulness" - what Ugandans have dubbed "zero grazing."

Testimonies

Further, the cardinal's critics have to explain why three countries where condoms are readily available and their use vigorously promoted - Zimbabwe, Botswana, and South Africa - have the world's highest rates of HIV infection.

Then there is the alternative expert testimony. Veteran Harvard medical anthropologist Edward Green admits that "many of us in the AIDS and public health communities didn't believe that abstinence and faithfulness were realistic goals. It now seems we were wrong. The Ugandan model has the most to teach the rest of the world."

Similarly, John Richens of London's University College, an expert on sexually transmitted disease, argues that "condoms encourage risky behavior" and "increased condom use leads to more cases of condom failure."

Who's cooking books?

Cardinal López Trujillo's critics accused him of either gross scientific ignorance or willful disbelief in the service of ideology. But those charges could be laid against some of his critics, and with far more justice.

Studies sponsored by the U.N. itself have suggested that massive condom distribution simply doesn't achieve significant infection reduction rates; yet the U.N. Population Fund continues to flood Africa with condoms (10 million of which were rejected by Tanzania because they leaked).

American foundations committed to condoms as their primary AIDS-prevention strategy publish reports that ignore Uganda's ABC program and mistakenly assert that Uganda's success is due to "extensive condom promotion."

Who's indulging in ideologically-driven and willful disbelief here? Who's cooking the books? Cardinal López Trujillo? Or his critics?

George Weigel is a senior fellow of the Ethics and Public Policy Center in Washington, D.C.