Taking the Stand

by Alan Dershowitz

  Since that time, several states have adopted gay marriage or civil unions, and the trend is clearly in the direction of full equality for gay men and women. I predict, based on the reaction of my current students to this issue, that the next generation will not even understand why earlier generations took so long to recognize equality for gays. On June 26, 2013, the Supreme Court rendered two important decisions regarding gay marriage. While neither expressly recognized a constitutional right to gay marriage, both signaled a growing acceptance of equality based on sexual orientation. Once again, the public acceptance of equality for gays will be more important than Supreme Court decisions regarding gay rights.

  A WOMAN’S RIGHT TO CHOOSE ABORTION

  As easy as the resolution of the gay marriage issue should be, both politically and constitutionally—full equality either in marriage or civil unions for all—that’s how difficult it is to resolve the issue of abortion as a matter of constitutional law. Politically I have always supported a woman’s right to choose abortion, since I do not regard an early-term fetus as a human being when a woman decides that she doesn’t wish to carry it to term.51 For me the decision to abort is very much a matter of degree, and the woman carrying the child should have primary responsibility to make that decision. But as a matter of constitutional law, I find little basis in either the right of privacy or the right to equal protection to grant a woman the right to terminate her pregnancy, particularly as the fetus comes closer to viability. Most legal systems establish exit from the birth canal as the moment of humanity, but a nine-month-old fetus in the womb is biologically indistinguishable from a fetus that has just exited the womb. (Indeed when kangaroos exit the womb, it is only a temporary condition and the joey returns periodically to the mother’s external womb for nourishment.) A fetus is as viable at nine months as at nine and a half, but distinctions must be made by the law.

  The religious component in the abortion debate is quite pronounced. For a believing Catholic, and for some Protestants, life begins at conception. If I believed, as some do, that abortion is the killing of a human being with a soul, I would probably be marching in front of abortion clinics to stop the murder of innocent babies. The fact that I don’t believe this is largely a matter of my religious upbringing. Some scholars believe that they can demonstrate, as a matter of philosophical “truth,” that the Catholic position is wrong. I think that this is the height of arrogance.52 Nor am I convinced by the faulty argument, offered by some, that if Catholics and others really believed that fetuses were human beings, they would punish abortion by the death penalty, and the fact that they don’t proves that they don’t really believe that fetuses are human beings. This argument is wrong for several reasons. First, some religious extremists do believe that abortion should be punished by death. Indeed, they have killed abortion doctors. Second, some Catholics are opposed to the death penalty even for murder. Indeed, that is the official position of the Vatican.53 Third, one can believe that abortion is murder and yet understand that there may be mitigating factors.

  Following the infamous Supreme Court decision in Bush v. Gore,54 I wrote a book55 in which I argued that “the seeds” of Bush v. Gore “were planted by the campaign to constitutionalize a woman’s right to choose abortion.”56

  I argued that the abortion issue is quintessentially political. It involves a clash of ideologies, even worldviews. Unlike issues of equality, the controversy over abortion has no absolute right and wrong side, either morally or constitutionally.57 Virtually everyone today acknowledges that segregation was both immoral and unconstitutional. All it took was a strong push by a unanimous Supreme Court to set in motion a process that was ongoing in most other democracies throughout the world, but that had gotten stuck in the United States because the channels of democracy had been blocked by malapportioned legislatures and other perversions of the democratic process. Over a period of years, the Supreme Court placed its moral imprimatur on desegregation and eventually unblocked these channels of democracy. It worked—not perfectly, but perfection is rarely possible in a heterogeneous and divided democracy. And congressional legislation regulating voting, housing, education, and other matters followed. A similar process is today under way with regard to equality for gays.

  Abortion is different. The Supreme Court’s decision,58 now more than forty years old, changed few minds on this issue, because those who believe that abortion is tantamount to murder are not like those who believed that segregation was right. The former believe that they occupy the moral high ground. And they do, if their underlying premise—that a fetus is a human being—is correct. No rational argument, whether made by philosophers or Supreme Court justices, will ever disprove the truth of that a priori premise. Nor will experience alter it, unlike views concerning segregation or gay rights, which have been markedly changed by experience.

  Moreover, the nation was—and remains—closely divided about the morality of abortion, both in the abstract and under various circumstances. Advocates of a woman’s right to choose abortion could have organized politically to win that right (at least for most women under most circumstances) in the elected branches of government. According to the ACLU,

  between 1967 and 1971, under mounting pressure from the women’s rights movement, 17 states decriminalized abortion. Public opinion also shifted during this period. In 1968, only 15 percent of Americans favored legal abortions; by 1972, 64 percent did. When the Court announced its landmark 1973 ruling legalizing abortion in Roe v. Wade, it was marching in step with public opinion.59

  But it is the proper role of the elected legislative and executive branches, not the appointed Supreme Court, to march “in step” with public opinion. Instead of devoting all their resources to continuing the legislative and public opinion battle, the pro-choice movement devoted much of its resources to the litigation option, whose goal it was to get the Supreme Court to constitutionalize a woman’s right to choose abortion. It worked as planned, thus sparing the pro-choice movement the difficult political task of organizing and fund-raising on a state-by-state basis. The justices did the work for them, by simply striking down most abortion laws in one fell swoop.

  The short-term consequences of constitutionalizing the abortion issue were powerful and positive for the choice movement. I would argue that the long-term consequences, however, were disastrous. Roe v. Wade provided the religious right and the conservative wing of the Republican Party one of the best organizing tools and rallying cries imaginable. The right-to-life movement was energized by this decision and became one of the most potent political forces both nationally and in a large number of states. At the same time, the pro-choice movement became lethargic, celebrating its great judicial victory and neglecting the hard work of organizing and fund-raising—at least in the beginning. As the ACLU has put it:

  The backlash was swift and fierce. Anti-choice forces quickly mobilized, dedicating themselves to reversing Roe. In 1974, the ACLU established its Reproductive Freedom Project to advance a broad spectrum of reproductive rights.60

  Litigation continued to be the weapon of choice in the battle to defend a woman’s right to an abortion.

  I would argue that Roe v. Wade helped secure the presidency for Ronald Reagan, by giving him a “free” issue. It was free because he—and other “pro-life” Republicans—could strongly oppose all abortion, without alienating moderate Republican women and men who favored a woman’s right to choose but felt secure in the knowledge that the Supreme Court would continue to protect that right, regardless of what Reagan and others said or did. Abortion became an important election issue for right-wing religious zealots, and a marginal issue for moderate Republicans who favored a woman’s right to choose but who also supported the Republican economic and other programs. Roe v. Wade thus contributed to the demise of the moderate wing of the Republican Party (the so-called Rockefeller Republicans) and drove former moderates such as the elder George Bush to the right. (He started as a pro-choice Republican and ended up as a pro-lif
e Republican whose hands were tied by the Supreme Court.)61

  At bottom, Roe v. Wade and Bush v. Gore represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes. Courts ought not to jump into controversies that are political in nature and are capable of being resolved—even if not smoothly or expeditiously—by the popular branches of government. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy) or equally compelling political claims (counting ballots by hand or stopping the recount because the standard is ambiguous). Absent clear governing constitutional principles (which are not present in either case), these are precisely the sorts of issues that should be left to the rough-and-tumble of politics rather than the ipse dixit of five justices.62

  There are, of course, considerable differences between Roe v. Wade and Bush v. Gore. No matter how critical one may be of Roe, no one can accuse the justices who voted for it of having been politically partisan, which was not the case with the five Republican justices in Bush v. Gore who voted to stop the recount and hand the election to the candidate and party for whom they had voted on election day.63

  The right of a woman to choose abortion and the right of gay couples to marry are the prime wedge issues that today divide the religious right from the rest of the country. But there are other issues that also divide the country along religious lines. Some involve religion directly, such as the effort to permit prayer in the public schools, and the right of religious groups and persons to be exempted from laws of general application, and religious discrimination—in law or in fact—against atheists, agnostics, or members of unpopular religions or “cults.”

  The difficult question of how to balance freedom of religion with the equally important freedom from religion—the two sides of the First Amendment coin—is never going to be neatly resolved in a pluralistic democracy. It is an ongoing tightrope walk that requires sensitivity from all sides. It also requires a Supreme Court willing to buck popular pressures in this highly sensitive area that the framers of our Constitution deliberately removed from majoritarian politics. Most importantly, it requires a collective decision by public officials of all political stripes to agree to stop running as defenders of the faith, and to end the contest over who is more religious or committed to “faith.” Religion and faith, as Jefferson recognized, are private matters, and no one should be judged based on their “religious opinions, any more than [their] opinions in physics or geometry.”64 With this in mind, let me end this chapter with my own “Ten Commendments” (a commendment is a cross between a “commandment” and an “amendment” that I would “commend” candidates for following):

  1. Do not claim God as a member of your party, or claim that God is on your side of an issue.

  2. Do not publicly proclaim your religious devotion, affiliation, or practices, or attack those of your opponents.

  3. Do not denounce as antireligious or intolerant of religion those who differ with you about the proper role of religion in public life.

  4. Do not surround your political campaign with religious trappings or symbols.

  5. Honor and respect the diversity of this country, recalling that many Americans came to these shores to escape the tyranny of enforced religious uniformity and, more recently, enforced antireligious uniformity.

  6. Do not seek the support of religious leaders who impose on members of their faith religious obligations to support or oppose particular candidates.

  7. Do not accuse of immorality those who reject formal religion. Recall that some of our nation’s greatest leaders did not accept formal or even informal religion.

  8. Do not equate morality and religion. Although some great moral teachers were religious, some great moral sinners also acted in the name of religion.

  9. When there are political as well as religious dimensions to an issue, focus on the political ones during the campaign.

  10. Remember that every belief is in a minority somewhere, and act as if your belief were the least popular.

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  FROM HUMAN RIGHTS TO HUMAN WRONGS

  How the Hard Left Hijacked the Human Rights Agenda

  The United States Constitution guarantees equality under American law, but the vast majority of the world’s population has no such legal protection. Human rights should not be limited by geographic or political borders. They should apply to all human beings, regardless of nationality, race, or religion. I have devoted much of my life to trying to turn this theory into reality on an international scale.

  I was brought up in the golden age of human rights. Our heroes were Eleanor Roosevelt, René Cassin, and Albert Schweitzer. Our great hope was the United Nations, with its Universal Declaration of Human Rights.1 Our mantra was FDR’s “Four Freedoms”: freedom of speech and expression; freedom of worship; freedom from want; freedom from fear.2 (I also have an apartment in New York directly across the river from the Four Freedoms Park.)

  The enemies of human rights were also clear: fascism, communism, racism, religious discrimination, McCarthyism, authoritarianism, slavery, apartheid, and other forms of oppression emanating from both the extreme right and the extreme left.

  All good liberals—and my friends, neighbors, and coreligionists were almost all good liberals—were knee-jerk supporters of the human rights agenda. And why not? How could any decent person be opposed to the Four Freedoms and other universal human rights, such as racial and religious equality, the ability to travel freely, the right to a fair trial, and the ability of workers to join unions and collectively bargain for fair wages and working conditions?

  We all admired the United Nations and looked to it as a guarantor of peace and a protector of human rights. And again, why not? It had been founded in the wake of the Allied victory over Nazism by nations—mostly democracies—that had been on the right side of the war against Germany, Japan, and other members of the fascist Axis. One of the UN’s first actions was to divide the British mandate over Palestine into two states—one for Jews, the other for Arabs—thereby creating the conditions that led to the establishment of Israel. I vividly recall watching the UN vote with my father on a small black-and-white television and cheering when the deciding vote was cast in favor of the two-state solution (which Israel accepted and the Arab states and Palestinian Arabs rejected).3 In those golden years, there was no conflict between supporting the UN and supporting the United States and its democratic ally, Israel.

  MY FIRST CONFRONTATION WITH THE UNITED NATIONS

  My earliest experiences in human rights (other than signing the petition to save the Rosenbergs, which earned me both the respect and the concern of my frightened parents, and my act of civil disobedience against the slave-owning king of Saudi Arabia, which nearly got me arrested) involved the United Nations.

  When I was a junior in high school, the United Nations came up with the idea of a universal calendar that would introduce a “bland day at the end of each year [that] would disrupt the 7 day Sabbatical cycle.”4

  The Orthodox Jewish community was in an uproar about this well-intentioned proposal, because it would change the natural order of when the Jewish Sabbath fell. Under the conventional calendar, the Sabbath corresponded with Saturday. Under the brave new world proposal, the Jewish Sabbath could fall on any day of the week. Jews (and Seventh-day Adventists) had fought hard to recognize Saturday as a day off from most jobs and school activities. The UN proposal would require Sabbath-observers to be absent from such activities when the Sabbath fell on a weekday.

  At the time I was president of the “Inter-Yeshiva High School Council”—a group I had formed after the principal of my high school banned me from running for the presidency of my own school’s student body. I used the newly formed organization as the nerve center for the campaign to stop the universal calendar. We did not consider the proposal to be anti-Semitic; it was motivated by benign universalistic aspirations. We regarded it as
insensitive to the religious concerns of certain groups.

  In an effort to broaden the opposition, I reached out to Seventh-day Adventists (who joined our efforts), Muslims (who seemed less concerned about whether their day of rest corresponded with the UN’s “Friday”), and other religious groups. The result was a postcard campaign (I still have the postcard) in which we sent thousands of printed cards with the following message to the UN:

  Ambassador Henry Cabot Lodge

  United States Delegation

  United Nations, N.Y.

  Dear Sir:

  As a student of a Hebrew parochial high school in New York, I wish to express my opposition to the World Calendar Reform proposal soon to come before the United Nations. This proposal, which would move the Jewish Sabbath to other days of the week, would have disastrous effects on Jewish religious life, thus impairing the freedom of religion which we so cherish.

  Respectfully yours,

  Under Auspices of the Inter-Yeshiva High School Student Council

  It was a modest effort by later standards: no marches, sit-ins, or lawsuits. But it succeeded. The UN dropped the proposal, and our small group got credit in the media. Here is how the New York Post—my community’s “newspaper of record” in those days—reported our success, beneath the headline CALENDAR REFORM TOPS FORMOSA ISSUE IN LETTERS TO U.N.:

  World Calendar reform, not Formosa, is the topic provoking most of the letters being received at the U.N. These [209 letters] were the result of a postcard campaign instituted by the Inter-Yeshiva HS Council. The opposition of religious groups to calendar reform—and it came from all faiths—prevailed. The U.S. informed Secretary General Hammarskjold that it did not favor any action by the U.N. to revise the present calendar. “Large numbers of the U.S. citizens oppose the plan,” the U.S. note said.5