By James Ottavio Castagnera Attorney at Large Last week the…

By James Ottavio Castagnera
Attorney at Large

Last week the New Jersey Supreme Court announced that “although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex couples can no longer be tolerated under our state constitution.” The Supremes gave the state legislature six months to either include same-sex couples under state marriage laws or enact a new system of civil unions.
I favor the latter option for the same reason I question the federal “No Child Left Behind” law. One size almost never fits all.
Under the NCLB Act, autistic kids and other severely challenged children are mainstreamed into traditional classroom settings. The result is the end of the traditional classroom. One teacher I talked to likened the 21st century NCLB classroom to a PTO meeting. “There’s so many support staff in the room that the adults may soon outnumber the students.” No doubt an exaggeration to make a point… but the point is well taken. When an autistic child is screaming, neither he nor his classmates are learning anything.
One-size-fits-all has hit our college campuses, too. “Dumb” is no longer an acceptable designation. Shop the psychology circuit and you can find some M.D. or Ph.D. prepared to say your child is ADD, ADHD, mildly suffering from Aspberger’s Syndrome, or plagued with an impulse disorder… anything except “stupid.” I don’t doubt the legitimacy of these categories; I question what I perceive to be the skyrocketing number of such diagnoses. I wonder if, like the Wizard, we’ve tacitly agreed that America’s youth, like the Scarecrow, no longer need brains, just diplomas.
The nation’s founders didn’t believe this for a Williamsburg minute. Sure, they said, “All men are created equal,” but they meant equal opportunity, not equal distribution of all goods and benefits. Life, they knew, was unfair. So long as fundamental rights, such as free speech, were protected from government intrusion, and the law provided all with equal protection and due process, they were willing to let life’s race work itself out as it will.
They risked their lives and property to win a revolution. They understood that citizens may be asked to make sacrifices. The great Supreme Court Justice Oliver Wendell Holmes also understood this point perfectly. In his 1927 decision in Buck v. Bell he declared Constitutional a Virginia law allowing the sterilization of the mentally incompetent. His frank statement still shocks Liberals today: “Three generations of imbeciles are enough”
Those who recoil at these words, wondering how the “Great Dissenter” could have written them, forget what else he said a few sentences earlier: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” Eugenics has fallen into disrepute — and rightly so — in the wake of WWII and what the liberation of Nazi Germany revealed about humanity’s capacity for perverse cruelty.
But, if I may mix my metaphors, don’t throw the baby out with the bath water. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes argued. So can’t the public welfare call on others for “lesser sacrifices?”
If the public welfare can be improved by strengthening the sanctity of marriage, and if our legislatures believe that same-sex weddings will weaken this age-old institution, then might we not fairly ask gay couples to accept a different sort of civil union, assuming the same civil rights come with it?
If autistic youngsters and other physically and mentally challenged children can gain as good an education as possible in special-education classes, while “normal” kids study in traditional settings, might this not be best for all concerned?
And if our universities are charged with graduating a globally-competitive workforce, do we really want to “dumb-down” our curricula?
When one-third of the American workforce belonged to labor unions, one size seemed indeed to fit all. Most union members labored side by side on assembly lines, where one pair of strong hands frequently was fungible with the next. As manufacturing moved offshore, unions shrank. No one who has watched the globalization of factory work should be surprised that only one American worker in ten is represented by organized labor in the private sector today.
No, one size can no longer be fitted to all—not in marriage, nor in education, nor in the world of work— not in today’s world, if indeed it ever could be. At the gut level, we all know this. What we seem to fear most in America today — more than guns, more than smog, more than illegal immigrants, even more than war — is stigma. Stigmatization is what one-size-fits-all is aimed at eradicating… but at what price?

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