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Till Death—or Tom DeLay—Do Us PartThe "sanctity of marriage" is suddenly negotiable.

By Dahlia Lithwick
Posted Wednesday, March 23, 2005, at 5:10 PM ET

Of all the ironies at the heart of the Terri Schiavo case—alleged federalists who scoff at federalism; the fact that Schiavo, who's in a persistent vegetative state, has lived off the winnings in the same kind of medical malpractice suit that Republicans in Congress seek to limit—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.

With respect to my critics in the Fray and my colleague Mickey Kaus, this just isn't a case about federal civil rights. This isn't about the federal Voting Rights Act or about Brown v. Board. At least it wasn't until Congress attempted, at the 11th hour, to turn it into one. 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.

The best evidence of a patient's desires in a right-to-die case is an express statement of the patient's wishes—a living will. There is none in Schiavo's case. The next best is the substituted judgment of a spouse—which has been proffered in the Schiavo case and accepted, over and over, by numerous courts. With each successive legal step away from the patient herself—to a guardian ad litem who never knew her, to a judge who never knew her, to an appeals court, then another court, and then to hundreds of members of Congress who know less about her than they do about grazing policy—any understanding about what Schiavo would have wanted becomes less and less possible.

This is not a matter of national policy, and the legislation passed on Monday doesn't even attempt to craft new federal right-to-die policies. 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. Can this be true? In DeLay's worldview, is my grocery list more binding than promises made to and by my husband about our deepest wishes? Can Bill Frist and Tom DeLay and George W. Bush really be attempting to shred up the very institution they most want to protect?

The federal constitutional claims in this case are so very thin precisely because there is no vast body of federal constitutional law in this area. Schiavo's family's new claims—about her religious freedoms and alleged due process violations traced right back to the state court—and their negligible likelihood of success are the very reason the federal courts refused to reinsert her feeding tube.

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.

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Dahlia Lithwick is a Slate senior editor.
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