Failure to communicate

Despite success in the U.S. elections last year and Iraq's success in its recent elections, many conservatives as we enter spring are walking around with wintry faces. Perhaps that's because the left still dominates the realms that create cultural messages-media and academia-and because last week judicial imperialism reared its head once again, this time in the person of a California Superior Court judge who ruled that gay couples have a right to marriage licenses.

Hadley P. Arkes is one of the nation's leading observers of how the interplay of law, media, and presidential leadership can change a culture. A political philosophy professor at Amherst College since 1966, he is the author of Natural Rights and the Right to Choose (Cambridge University Press, 2003) and five other distinguished books. He was the architect and main advocate of the Born-Alive Infants' Protection Act, which he first proposed in 1988 as "the most modest first" step for legislating on abortion and pushing those who call themselves pro-choice to face the logic of their positions. President Bush signed the act into law in 2002.

Here he answers questions about how to fight back against abortion and same-sex marriage propaganda.

WORLD: Is President Bush missing opportunities to have an effect on changing the abortion culture?

Arkes: The Department of Justice, in the middle of February, moved to enforce, for the first time, the Born-Alive Infants' Protection Act, the law that protects a child who survives an abortion. This was a focused, important act, making a strategic point, but so far the news has not made its way to the public. Nor did the media cover the debate over the law itself and its enactment, for they did not care to draw attention to the bill and its import.

The matter might have been different if President Bush had joined the argument over the bill or even pointed up its significance before it had been passed. We see then that even the most focused acts of an administration may not draw notice, or shape the public understanding; but a president, at the top of the state, does draw attention, and even his words offered in passing may have a deeper resonance.

WORLD: Like Reagan?

Arkes: Ronald Reagan mused aloud on the question of whether fetuses feel pain, and those words set off discussions and debates rippling through the country, and making their way to late-night television. President Bush could have a comparable effect if he were willing, in the same way, to pose questions, or muse aloud, for as we've learned, when the president of the United States muses aloud, people listen.

WORLD: Could he also put some pressure on the Democrats?

Arkes: The Democrats now sense that they have a problem with the issue of abortion, and they are trying to make overtures to the pro-lifers. But all of their offers leave intact the notion that a child in the womb may be destroyed for wholly private reasons, without the need even to render a justification. The president can test the Democrats and lure them in by drawing them back to the Born-Alive Infants' Protection Act.

He can remind them that they did not oppose this Act-that no Democrat voted against it. But he could point out that the Act did not contain penalties, and he could invite them to join with the Republicans in revisiting that Act and facing that question of penalties: How serious a matter is it-how serious a penalty would be appropriate-for withholding medical care from a child born alive, marked for abortion?

WORLD: And how would the Democrats react?

Arkes: They would be given a chance to show their sincerity, but the question would be a stern one for them, for it would mark the first instance of the Congress legislating penalties for abortion since Roe v. Wade. At the same time, the President would bring home again to the public that abortions may be performed now through the entire length of the pregnancy, extending even to the moment of birth.

The president could advance matters further-and deepen the problem for the partisans of abortion-if he proposed simply to remove federal funds from all hospitals and clinics that house partial-birth abortions or the "live-birth" abortion, the procedure in which a child is delivered, and then put aside to die. He could raise the question-just raise the question-with the Internal Revenue Service about the hospitals that perform these "abortions."

WORLD: Some folks in the administration would be concerned that he would receive a press roasting for that.

Arkes: He should get the vapors-gasp for breath-because he has been criticized by The New York Times? As the first Mayor Daley once said, "I have been vilified, I have been crucified, I have been . . . criticized!" But the president could soften the criticism, and throw his adversaries off balance, by suggesting, first, that we back away from criminal and civil penalties, and take an approach even more moderate: that we may simply remove federal funding, or withdraw tax exemptions. After all, the institutions that house these surgeries would be in violation of federal law and not "in accord with public policy." Do they stand then to lose their tax exemptions? The mere posing of the question, on the part of the president, is likely to produce some striking effects.

And one further gesture: The president could bring out the Olasky proposal to have more ultrasound machines in offices (especially crisis pregnancy centers) that counsel women who are pregnant. Recent experience confirms that the sight of the child in the womb has the most pronounced effect in inducing people to change their minds about abortion. And yet the arrangement is still consistent with the notion of abortion as "a woman's choice."

[Editor's Note: H.R. 216, The Informed Choice Act, introduced by Rep. Cliff Stearns (R-Fla.), would provide funding for the purchase of ultrasound equipment by nonprofit tax-exempt organizations.]

The Democrats would not have to give up any of the premises underlying a "right to abortion." But this move would put the Democrats into a train of steps that must undercut, with every step, the surety and conviction that sustains them as they seek to support a right of abortion, unqualified, unrestricted, at any time, for any reason.

WORLD: Could the president take some modest steps regarding same-sex marriage?

Arkes: Yes, as before: They involve the planting of questions, the dangling of premises, the public musing over an argument. The problem is that Mr. Bush prefers to sound sentiments or themes ("the culture of life"), but he rather shies away from framing an argument or making a case. That is, he tries to touch the chords of sentiment, but he doesn't seek to engage the reasoning of the public.

WORLD: If he were given to making comments that test premises, what kinds of questions could he raise?

Arkes: Here's one-the Supreme Judicial Court in Massachusetts held that the law may not "privilege procreative heterosexual intercourse between married people above every other form of adult intimacy." Mr. Bush could then muse aloud: Does that mean that a man may marry his natural son, when the son is an adult? Or a man could marry his daughter if she is an adult-and sterile? Is it enough then for a marriage that we have two adults who are intimate? But then why only "two"?

If the Court in Massachusetts is right and marriage has nothing to do with begetting, then why should a marriage be confined to two people? We have now the "polyamorous," who claim that their love is woven into a larger ensemble of three and four. Why do we refuse them the right to marry the people they love?

WORLD: What would you do with the question of "civil unions"?

Arkes: The Supreme Court of Massachusetts showed that any move to incorporate civil unions in the law would give the judges all of the leverage they need to strike down the traditional laws on marriage. If a legislature grants all of the privileges of marriage in a form of civil union, but then merely withholds the name of "marriage," the judges find the presence of an invidious discrimination. The implication they find is that gays and lesbians as a class have been disparaged, that they are not regarded as worthy of marriage in the way that other couples are. In contrast, the laws that barred fathers from marrying daughters said nothing "invidious" about fathers or daughters. The president, in a gesture of tolerance and good nature, has held out the possibility of "civil unions." But he cannot do that without undermining his whole position in the defense of marriage.

He could pose this question: If the purpose of begetting children is no necessary part of the understanding of marriage, then why shouldn't the benefits of same-sex partnerships be extended to heterosexuals? Two widows, two brothers, might find an advantage in sharing Social Security benefits and having joint tax returns. Why not make the arrangements available without implying in any way that there is a sexual relation in the coupling? In that way too the law would not be pushed into the position of conferring a special standing or putting a stamp of legitimacy on homosexual sex.

WORLD: What's the lesson of the 11 referenda votes against same-sex marriage?

Arkes: The securing of marriage has a deeper, resonating significance in the culture war. The American people are a tolerant lot, but they would draw the line at same-sex marriage. One gay activist in Princeton took notice of the recent votes in 11 states to reject same-sex marriage, and he recognized that the vote was really beyond the matter of marriage. He and his friends drew the inference that the voters were really recording their aversion to the homosexual life. The American people continue to be tolerant, but when they hold the line on the matter of marriage, they are marking the limits of their willingness to be badgered further and have their children catechized in a new view of the moral world.