The "sanctity of marriage" is suddenly negotiable

Dahlia Lithwick in Slate says

Of all the ironies at the heart of the Terri Schiavo case … the most astonishing is this: Congressional Republicans who have staked their careers and the last election on the "sanctity of marriage" have turned this case into a mockery of that very institution. …

There was and is one principal issue to be decided in this case and that is, what would Terri Schiavo have wanted for herself had she foreseen an irreversible 15-year vegetative condition in her future? Courts have been deciding these issues for decades now, and they have done so by triangulating back not from the federal Constitution but from the implicit respect we have always had for the compact between people who marry.

The reasons given by the Rick Santorums of the world for limiting marriage to men and women always stress that marriage is different, sacred, special. And that's true; it's unlike any other bond under the law. Most states agree, which is why in these invariably awful substituted-judgment cases, courts generally defer to the spouse—who is presumed to best know what the incapacitated patient would have wanted. …

This case is about a reluctant state court making its best effort to unearth an individual's most private wishes and using the intimate relationship with her spouse in order to do so. Yet Schiavo's family—the Schindlers—her governor, and Congress have totally disregarded these presumptions about the sanctity of marriage. To them, the marriage is immaterial.

Why? Because they don't like her husband? Because they don't like that he has a girlfriend? Or because they don't like the decision he made? "I don't know what transpired between Terri and her husband. All I know is Terri is alive. ... Unless she has specifically written instructions in her hand, with her signature, I don't care what her husband says," snarled House Majority Leader Tom DeLay the other day. …

Without any strong federal constitutional claims on which to rest, the Schindlers come back to the same old argument they have been making for years: They should have guardianship over Terri instead of Michael. But the law disagrees. The law says that when one marries one takes on a whole host of legal rights and duties that trump your parents' wishes. Marriage is a sacred and intimate promise. And the very people who keep preaching about the sanctity of marriage when defending it from gay gatecrashers used to believe this more than anyone.

There is just no evidence that Michael Schiavo is an unfit guardian. Sure, it would make for a better Harlequin Romance if he'd spent decades pining alone at his wife's bedside; if he hadn't found himself a girlfriend and some kids. But he and Terri were—and still are—married, and the law has always treated that bond as sacred: serious, inviolate, till-death-do-us-part serious, until the parties themselves decide otherwise. Tom DeLay may not care what Terri Schiavo's husband says. But I'd bet Terri Schiavo would have.

Do Bush and friends argue that it's not about who should be the guardian but about whether anyone in a persistent vegetative state should be taken off feeding tubes? I haven't heard that argument. The legislation passed in Congress didn't go that far. The Florida senate just refused to pass a law to that effect. So perhaps Dahlia Lithwick is correct: this is about who should be the guardian and make the decision in this case.

On the other hand, Harriet McBryde Johnson makes a good case that this is not about the right to die, that conscious or not, Terry Shiavo is alive and should not be put to death, which is what she sees happening. She writes

• Ms. Schiavo is not terminally ill. She has lived in her current condition for 15 years. This is not about end-of-life decision-making. The question is whether she should be killed by starvation and dehydration.
  
  
• Ms. Schiavo is not dependent on life support. Her lungs, kidneys, heart, and digestive systems work fine. Just as she uses a wheelchair for mobility, she uses a tube for eating and drinking. Feeding Ms. Schiavo is not difficult, painful, or in any way heroic. Feeding tubes are a very simple piece of adaptive equipment, and the fact that Ms. Schiavo eats through a tube should have nothing to do with whether she should live or die.
  
  
• This is not a case about a patient's right to refuse treatment. I don't see eating and drinking as "treatment," …
  
  
• [I]f we assume that those who would authorize her death are correct, Ms. Schiavo is completely unaware of her situation and therefore incapable of suffering physically or emotionally. Her death thus can't be justified for relieving her suffering.

This is a very interesting argument. It hinges on whether we see Terri Schiavo as a living human being even though, let's presume, she is not (and never will be) capable of thinking, feeling, or having consciousness. Should a non-sentient but physiologically functioning human body be granted the rights of a human being? Ms. Johnson says that such a body should.

When put in those terms, I lean toward the negative. But the question does require that we spend more time thinking about what we mean by a human being and under what conditions the rights and privileges of a human being should be conferred (and withdrawn).