I've been trying hard to justify writing about the Terri Schiavo saga for a gay publication. Gay groups, very sensibly, did not take a stand on the specific question whether the woman's feeding tube should have been removed. It wasn't a "gay" issue, although individual gay persons face similar grave circumstances. The Schiavo case is, however, part of the larger agenda of the religious-conservative groups that moved political and legal mountains to have their way. That agenda is gathering momentum under the banner of promoting a "culture of life," an idea whose central precepts, as articulated by religious conservatives, strongly oppose gay equality.
There are two easy questions raised by the Schiavo mess. First, should Congress have intervened by passing a law giving federal courts power to review this case alone? Absolutely not. Laws are not tickets "good for this ride only." A law is respectable as law when it deals with a wide range of cases. This requirement of generality helps ensure that law results from a deliberative process, one not dominated by momentary zeal and favoritism towards particular persons. Congress acted on passions, not reason, and on partiality, not sound public policy.
It is Congress's constitutional responsibility to make sure that the states do not take life without due process of law. Nobody would suppose Congress must remain silent if states were starving healthy people picked randomly from the street. But there is no plausible claim that the decision to remove Schiavo's feeding tube, made some 10 years after she entered a persistent vegetative state, was insufficiently litigated. There is no evidence that the state courts generally are not giving due consideration to such cases. So there was no justification for Congress to act, much less to act precipitously.
The second easy question is this: Should a competent person be able to refuse medical intervention, including a feeding tube, designed to prolong her life when she enters a hopeless state of pain or incapacity? Yes, absolutely. Prolonging a person's life under such circumstances against her will is a direct affront to her dignity and personal autonomy. It is a paternalistic declaration by the state, enforced by physical invasion of her body, that it knows what's best for her.
The hard question raised by the case was whether there was sufficient evidence of Schiavo's wish to remove the feeding tube. There was no living will, a legal document in which a healthy person clearly makes the choice in writing. The only evidence of her desire to decline medical intervention was the testimony of her husband, testimony that a state trial court found "clear and convincing" after hearing from numerous witnesses on both sides of the question. I'm not in a position to say the trial court was wrong. Neither were the numerous state and federal judges who reviewed the matter on appeal. Neither were Tom DeLay and "Dr." Bill Frist.
I can imagine a state law that says, "No feeding tube shall be removed unless the patient has executed a living will," or, "In the absence of a living will, no feeding tube shall be removed unless at least two family members testify that is what the patient would have wanted." Either of those might be good rules, erring as they do on the side of preserving life. But neither rule is the law in Florida, or any other state, and changing a law after the fact to suit one case cannot properly be called "law" at all.
What does all this have to do with gay rights? Just this: Suppose Terri Schiavo had been gay. Many things about the case would have been different.
To start with, the parents' wishes - whatever they were - would likely have been respected by the Florida state courts, despite whatever her unmarried partner might have said. As a practical matter, Schiavo's husband enjoyed a strong presumption of believability and authority simply by virtue of their marital relationship. Absent special legal arrangements, that is something unavailable to gay partners in Florida.
Imagine that our hypothetical case made it to the stage where a judge ordered the removal of the feeding tube. What reaction would there be from the "culture of life"? Would religious conservatives appear en masse outside a homosexual's hospice bed to pray for her life? Would they get themselves arrested trying to take her food and water? Would they hold press conferences pleading with the governor and state legislature to intervene? Would the Congress convene in extraordinary session to save a homosexual vegetable?
While a few principled people might show up, I doubt a mass movement would emerge. As for intervention by the state government, Florida is the only state in the union that bans adoptions by homosexuals. Forget Congress.
One could conceive a "culture of life" that affirmed the equality of gays. Such a culture might even show a special concern for the dignity and equality of gays, as it would for any marginal persons, like the disabled or the dying.
But that is not the culture favored by religious conservatives. Their culture of life opposes equal treatment of gays in just about every important area of life - in marriage, the military, and employment. Its devotees would bring back sodomy laws if they could. They seek for us only stigma and discrimination. They seek, damn the law, to overwhelm our autonomy just as they presumably did Terri Schiavo's. They seek to impose their vision of what's best for us, even if that means force-feeding us a life we can't bear to live.