Illegal immigration, abortion, and gay marriage are today’s most important and divisive social issues that have materially impacted, if not tipped, national election outcomes back to President Clinton’s 1992 victory. My recent lengthy email dialogue with Courtney McGuigan, a Chicagoland friend, about abortion and gay marriage made crystal clear that a free, fair, and just society must establish federal legislative solutions on individual equal rights issues as opposed to allowing states to experiment their way to different state laws often over decades, even generations. A just nation should not wait that long in the name of states rights especially because nine Supreme Court justices invariably legislate from the bench in the end such as the Roe v. Wade decision. Congressional leaders must have the moral clarity without regard to party affiliation to uphold legislative prerogative and do the right thing vs abrogating power to judicial and executive branches on many issues in recent years (a future post.)
The three issues center on the 14th Amendment right to ‘equal protection under the law’ for US citizens ratified by Congress in 1868. The 14th Amendment gave former slaves the rights to citizenship and vote, but also explicitly limited the right to vote only to males as was current practice among the states. Myra Blackwell (Blackwell’s story) was the first woman to petition in 1869 for the right to vote and end Coverture (a state by state legal doctrine in which a newly married woman lost her legal identity, and her personal and real property became one under control of the man). The Illinois Supreme Court denied her claim and the US Supreme Court did not accept the case. It took 23 more years until Congress passed Married Women’s Property Act restoring women’s legal identity and right to own property, and 51 more years until Congress ratified the 19th Amendment (1920) giving the women right to vote. Amazing that doing the right thing can take over two generations in the most free and prosperous nation on Earth.
First, let’s talk about ‘equal protection’ under the law.
- Abortion/Right to Life: Women like men have an equal right to their personal property including consensual sex and reproductive decisions. At conception, a fertilized egg becomes an embryo which becomes a fetus which becomes a human being. At some point in the pregnancy life cycle, the unborn has an equal protection to life. As biologist Dr. Ricki Lewis writes in blog post ‘When Does a Human Life Begin’, the egg becomes an embryo within 5 days and the embryo becomes a fetus with rudimentary biological functions at 8 weeks. The fetus can conceivably live independently as pre-mature baby at 22 weeks (just over 5 months). The raging question: when does the embryo have a legal and protected right to life? At the moment of conception, at the 8 week fetus stage with all basic biological functions, or the stage of independent living? Most reasonable humanitarians should agree that a fetus deserves a right to life at some stage in the pregnancy cycle and that partial birth abortions represent 8th Amendment cruel and unusual punishment to the fetus. Several states still have the power to regulate/limit the use of abortion and have taken actions to provide counseling, or require parental notification, mandatory ultrasound, and/or some waiting period before the procedure. Some states have also passed trigger laws that place abortion limits if Roe v. Wade were ever over-turned. Planned Parenthood, the nation’s largest abortion provider, performed over 330,000 abortions in 2012. (2012 Planned Parenthood abortion volume).
- Immigration: The Pew Hispanic Center suggests there are 11.2 illegal aliens in the US and 8 million are active in the workforce. Pew also suggested that there are 23.7 million eligible Latino voters in 2012 election growing 20% every election cycle. Illegal workers are paying sales taxes, often income taxes working under false Social Security numbers, and property taxes through a rental property or owned residence. Though they are not yet citizens, they are responsible people and productive team members in American society. They deserve a clear earned path to citizenship if they continue full-time employment and do not commit any felony crimes.
- Gay Couples: According to a 2012 UCLA Williams Institute study on LGBT demographics study, approximately 3.8% or 10 million Americans are gay. Federal and state laws confer legal rights to married couples as defined as marriage between a man and a woman. Such legal rights include child custody, taxation, gifting and estate planing, and access to employer and federal benefits. People should have the same legal rights without regard to religious orientation, race, gender, physical capacity, and sexual orientation among other relevant demographic characteristics. Many states do not distinguish between civil unions and gay marriage to confer legal rights. This legal ambiguity creates due consternation among conservatives worried that approval of gay marriage might negate religious institutions’ First Amendment rights to religious freedom and freedom of association, specifically their right to govern religious expression and confer religious sacraments such as marriage as they deem appropriate.
Before discussing viable ‘equal protection’ solutions, let’s now review the demographics and politics of the three issues according to CNN’s 2012 exit polls. CNN 2012 Presidential Election exit polls
1. Latino/Asian voters who would care about Earned Citizenship: Latino (10%) voted 71% for Obama, 27% for Romney. Asian (3%) voted 73% for Obama, 25% Romney. 13% of vote x 71% = 9.2% of total vote to President Obama.
2. Unmarried women who care most about the right to choose: 23% of vote – 67% for Obama, 31% for Romney = 15% of total vote to President Obama.
3. Gay people who care most about same-sex marriage equality: 5% of vote – 76% for Obama, 22% for Romney = 3.8% of total vote to President Obama
Even before the Presidential primary season begins, three growing voting groups representing 41% of the voting electorate who have three important social issues around ‘equal protection’ provide the Democrat party 28% of the final vote in national elections. The CNN exit polls also show clear majorities support some level of abortion rights (59%) and legal immigration (65%) while same-sex marriage rights is evenly split with slight edge to gay marriage. Whereas the national vote has been nearly split in recent election cycles, one can clearly attribute the voting gap difference with these important demographics to these three relevant issues to their well-being or those they know well.
With the legal and politics foundation established, the United States can and should lead with viable federal laws that provide ‘equal protection’ to the key stakeholders just like federal laws that protected the rights to vote, work, organize, and petition, and avoid discrimination. Currently, the Roe v Wade Supreme Court decision is de facto law for abortion/right to life. There is no unifying federal approach for illegal workers’ treatment or same-sex marriages so states are working up their own laws, processing subsequent lawsuits, and moving cases up to the Supreme Court for review. Ultimately, these are equal rights/equal protection cases that deserve a federal legislative solution representing a majority consensus of 240 million American adults, not a Supreme Court consensus of 9 justices nominated by three to four past Presidents.
Consistent with all recent polling data, a majority of Americans would agree with the following three proposed federal acts:
- Dream Card Act: any illegal alien adult who provides documented proof of full-time employment and residence to the Immigration & Naturalization Service; retains full-time employment for three years and is not convicted of a felony crime; and files annual tax returns and pays all applicable income taxes including one-year of back taxes can apply and receive a Dream Card to work in the United States without threat of deportation and apply for full US citizenship on the third anniversary of the application acceptance date. The applicants and dependents under 18 years of age may enjoy access using the Dream Card to the public school system and any state social services or applicable benefits if the above conditions are met at all times. In this way, productive illegal workers can come out the shadows and have a predictable path to earn citizenship and join Team USA.
- Shared Right to Life Act: any adult woman 18 years or older may abort a pregnancy until the fetus has established all of the biological functions necessary to become a human being with such period not to exceed 120 days, 12 weeks following the date of conception. Such period may extend to 22 weeks from conception in a documented case of rape, incest, or a threat to the women’s life. Women under 18 have the same rights following a mandatory ultrasound. Open for debate are a brief counseling period including education of adoption services and some parent notification period. Minors could face an abusive parenting environment and a counseling period is not required for minors to seek birth control from a doctor.
- Same-Sex Marriage Rights Act: any two consenting adults without regard to gender may receive the civil certification of marriage recognized by the federal and all state governments, and thereby enjoy all rights and protections of marriage. The Act recognizes and protects religious organizations’ constitutional rights to freedom of religious expression and association so they may manage their own affairs and decide the recipients of religious sacraments including the marriage sacrament.
Everyone appreciates these social issues are very important and difficult. Each of the affected stakeholders deserve equal rights and protection under the law for who they are and what they contribute to our nation. Though every American has the right to express their personal views, we have to arrive at a consensual balance that protects everyone’s equal rights. America becomes a more perfect, more exceptional union the more we, as a people, can respect everyone’s rights, and embrace the notion of life, liberty, and the pursuit of happiness for all!