Certainly the outcome has substantive impact. If the court decides that Proposition 8 was passed in an unconstitutional manner, it becomes a nullity and California returns to being the second of these United States to allow homosexual mariage by judicial pronouncement. There are, however, some interesting sub-plots that get lost in the shuffle.

First, if the court does rule that Prop 8 is unconstitutional, it would render moot any federal case arguing that Prop 8 violates the 14th Amendment to the federal Constitution. In my mind, this is the “big fish” argument. I have written previously on the evolution of the 14th Amendment and how the United States Supreme Court has a long history of taking a results-oriented approach to its interpretation. One can see the “ramp up” to the infamous Roe v. Wade decision in prior cases dealing with government intrusion into marriage and procreation. There has been a similar ramp-up over the past several years regarding the issue of homosexuality on society. The Supreme Court has issued decisions striking down sodomy laws in all 50 states and has held that states cannot make constitutional amendments excepting “sexual orientation” from classes protected from employment discrimination.

All this means that the time is ripe for a Supreme Court decision stating that states cannot prohibit homosexuals from marrying if they wish. The interplay between Prop 8 and the 14th Amendment looks to me like the perfect battleground for such a decision. But if the California Supreme Court overturns Prop 8, it would make the federal question moot and non-justiciable. A California victory for homosexual marriage proponents could come at the expense of a federal coup d’état.

My second observation is that there is a considerable ideological overlap between the people who want the California Supreme Court to overturn the results of a popular election and the people who, for the last 8 years, have mercilessly ridiculed Justice Scalia and the United States Supreme Court for usurping a popular election and declaring George Bush the winner of the 2000 election. For over 8 years, the accusation has come from liberal corners that the Supreme Court should not have gotten involved in the democratic process by halting the recount and that the will of the people should have been given paramount importance. Now, from those same corners, we are hearing that the will of the people of California should not be recognized and that the state Supreme Court should step in and invalidate the results of a popular vote. This is certainly inconsistent, if not downright hypocritical.

So what do you think? Will the California Supreme Court strike down Prop 8? Can you see the United States Supreme Court mandating homosexual marriage throughout the country? When should courts substitute their own notions of morality for the will of the people?

On the other hand, there is not an absolute right to health care in the way it exists in other countries with socialized medicine schemes. With the exception of emergency treatment, medical care is a market commodity that cannot be gotten without paying the price. In this sense, there is no right to health care in the same way that there is no right to a steak dinner; you can get it if you pay for it, but you are not entitled to it in any ontological sense.

The question of whether there should be a right to health care has a similarly equivocal answer. Should we adopt a socialized, government-funded health care system as certain presidential candidates proposed during the recently-completed election cycle? If we are speaking about an absolute right, this is the way we must frame the question because it is the government we look to to protect such rights and the government is the only entity large enough to guarantee such a right. This question, of course, implicates other questions which have at their root foundational socio/religious concerns such as the existence and origin of “rights,” as well as the issue of the proper role of government.

As I see it, an absolute right to health care, if there is one, must be found in the nature of mankind as a whole. The common rights we generally recognize (as described in the Constitution) are bestowed by our Creator (as the Constitution itself recognizes). If this be the case, any additional rights we might want to recognize would have to be rooted in our nature as creatures. In other words, we generally recognize that we have a God-given right to live and that our right to life may not be infringed arbitrarily. Does “life” incorporate “health?” Are we entitled to whatever medical care we consider necessary to maintain the highest quality of life? What about minimum health care necessary merely to sustain life?

I have not yet arrived at a firm conclusion, but my inclination is to answer in the negative on both counts. The simple fact is that everybody will die eventually and any improvement of the quality of life or even sustaining of life is more than what we are entitled to. It is a struggle to maintain this position when considering the ease with which many deadly conditions can be cured or corrected. In this respect, we all have an interest in ensuring that health care, while not an entitlement, is something reasonably accessible to all.

I tend to believe that deregulation and reliance on the free market will have the effect of putting health care back within financial reach of most Americans. Of course, subjecting health care to market forces presumes that it is not an absolute right. However, I believe that recognizing something not to be a right could have the counterintuitive effect of making it more easily attainable.

It also means that the product received will often be closely related to the price paid, which necessarily means that those with less resources will not normally be able to receive the same products as those with greater resources. This is true. But it also provides opportunities for compassion, both on the part of health care providers and on the part of those who have a special burden to fight poverty and its effects. And I believe that the free market has plenty of room for compassion.

What do you think?