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Category: Marriage equality

Roberts will save Obamacare, but Kennedy may disappoint on marriage equality

Originally published February 3, 2015

04597ef027f0b92f8e95c9539a56396cIf past is prologue, then the marquee Supreme Court rulings this term will be a replay of 2012 and 2013. Three years ago, Chief Justice Roberts switched sides, and engaged in some rather apparent legal gymnastics, to uphold the constitutionality of the Affordable Care Act. And two years ago, Associate Justice Kennedy wrote a sweeping majority opinion striking down the federal Defense of Marriage Act, but failed to join with liberals to affirm a federal constitutional right of same-sex couples to marry. Roberts seemed motivated to maintain by the legitimacy of the High Court by not striking down President Obama’s signature legislative accomplishment; Kennedy by a libertarian sense that it is up to the states, not the federal government, to define marriage.

Assuming nothing has changed in the interim, there’s little reason to think either justice has changed his respective mind on any of these issues.

In King v. Burwell, the Court will have to decide whether the federal government may continue providing subsidies to assist individuals who purchase health insurance in the federal exchange because the state in which he or she resides refused to create its own marketplace. The case comes down to whether a mere Scrivener’s error in merging the text from two Senate committees into a 1,000-plus page bill can defeat the legislation – despite the clear congressional intent, scoring of the bill and administrative interpretation to the contrary.

The original question before the Court in 2012 was whether the individual mandate of the ACA exceeded Congress’ authority under the Commerce Clause. Roberts said, “yes,” but didn’t want to strike the entire law. When he couldn’t get any of his fellow conservatives to sever the good from bad, he turned to the liberals who also took an all-or-nothing approach based upon the design of the ACA. Obamacare rests on three, interrelated legs: (1) the abolition of pre-existing conditions and lifetime caps, which the insurance companies can only afford due to (2) the individual mandate that broadens the risk pool, but which requires everyone to purchase insurance that is only affordable for some if (3) premiums for those making up to four times the poverty rate ($47,080 in 2015) are subsidized. Take away any one of the legs, and the entire enterprise fails – or descends into a so-called “death spiral.”

Roberts saw the logic of the liberals and stretched to find the penalties associated with the individual mandate as a tax, clearly constitutional under the taxing and spending powers of Congress. In doing so, Roberts got a twofer. He restored the legitimacy of the Supreme Court that had badly suffered after its party-line, blatantly political holding in Bush v. Gore. And he laid the groundwork for reeling in the Commerce Clause, a favorite target of conservatives, upon which most of the welfare state has been based since the Great Depression.

So what has changed since? Well, despite website problems during its initial rollout, the ACA has been a smashing success, enrolling millions more insureds than predicted, holding down healthcare inflation and premiums and causing the number of uninsured to plummet. In other words, the equities in favor of saving Obamacare are exponentially greater today than before the program began last year. If Roberts were to torpedo the ACA now, it is no overstatement to say that millions of people will lose insurance and many will die as a result.

And the efficacy of the case against the ACA in Burwell is so legally, factually and morally infirm that it won’t take much effort by the Chief Justice justify upholding the law, again. Robert’s self-created image as a judicial umpire – only calling balls and strikes as presented to him – will be enhanced, at no jurisprudential cost.

Kennedy’s position on marriage equality is more interesting. As the author Romer v. Evans (1996), Lawrence v. Texas (2003) and the aforementioned U.S. v. Windsor (2013) (striking down, respectively, Colorado’s anti-gay Amendment 2, anti-sodomy law nationwide and DOMA), Kennedy has penned some beautiful phrases about the rights of LGBT Americans.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal…. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Yet, in 2013, on the same day that Windsor was announced, Kennedy joined the dissent in the Proposition 8 case, Hollingsworth v. Perry, that would have found standing and wished to rule on the merits of a national, constitutional right to gay marriage. It was almost inconceivable to believe that if Kennedy desired to find such a constitutional right, the four liberals on the Court would not have, enthusiastically, joined him.

Instead, Roberts became the unintentional hero of gay marriage in California, forming a heterodox majority finding that those seeking to uphold Proposition 8 lacked standing to defend it – thus affirming the lower courts’ rulings striking the law from the books and allowing same sex marriage to resume in the Golden State.

The seeming contradiction between Kennedy’s positions on DOMA versus Proposition 8 may be explained by his political and judicial philosophies. His decisions over the years are consistent with those of an old fashion Eisenhower Republican with a libertarian sense of a limited federal government, reserving plenary powers to the states. This explains why he would view the federal government’s definition of marriage under DOMA as an intrusion into a domain traditionally exercised by the states. And at the same time, not wish to commit the same sort of intrusion by having the Supreme Court craft a federal right to marriage equality.

So what has changed since? Well, actually quite a lot. Numerous federal courts have now followed the logic enunciated in Kennedy’s own majority decision in Windsor to strike down same gay marriage state bans, and now same sex couples in 36 states and the District of Columbia can get married. Thousands of gay couples have wed as a result. A negative Supreme Court ruling would leave the status of these marriages in legal limbo, a message Kennedy would seem loathe to send, especially given his Windsor decision’s consternation at how the children of same sex parents would view their families as second class citizens.

Even more, as one federal court after another has struck down state bans on same sex marriage over the last three years, the Supreme Court has refrained from interfering with their rulings – refusing review them or even grant temporary stays. Since it takes only four justices to grant certiorari, tea-leave-readers believed this showed that other conservative members of the Court (Scalia, Alito, Thomas and Roberts) didn’t have confidence that Kennedy would vote with them.

The optimistic view is that the Court has allowed litigation and legislatures around the country to marinate on the subject and is now primed to take the temperature of public sentiment, which has swung markedly in favor of marriage equality. But there is something tautological about that theory. If Kennedy never really intended Windsor to create the foundation for a federal, constitutional right to gay marriage, then the rulings by numerous courts that have relied upon Windsor to affirm such a right may be suspect.

A more pessimistic view, one that I hold, comes from the two questions certified by the Court when it granted review in Obergefell v. Hodges (in which conservative jurists on the Sixth Circuit Court of Appeals distinguished themselves as being the only appellate court to uphold state bans on same sex marriage): First, do the Equal Protection/Due Process Clauses of the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And second, does the Full Faith and Credit Clause require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

My humble prediction: Kennedy will say “no” to the first proposition, and “yes” to the second. In fact, there would be no need for the second certified question if a majority of the justices were prepared to affirm the first proposition.

And the silver lining: the Full Faith and Credit Clause will, over time, bring marriage equality to all 50 states as married gay couples that recognize same sex unions relocate around the nation. In fact, using this Clause was always an alternative, some think stronger, basis on which to move the cause of marriage equality forward. It has the advantage of being incremental and less threatening. And it may avoid the type of backlash that the Court has experienced when it has federalized big, social issues, such as abortion in 1973 in Roe v. Wade, which we have been fighting ever since (and despite the fact that there was a move toward liberalization of abortion law before the Court weighed in and polarized the sides, some say even spurring the creation of the Moral Majority).

Maybe that kind of incremental progress of which he is the father is what Justice Kennedy really wants as his legacy.


Chief Justice Roberts is the unintentional hero of marriage equality

Originally published June 27, 2013

de77cfef29d332e909fdfcccd055eea8Associate Justice Anthony Kennedy has gotten wide recognition for providing the crucial fifth vote in the Supreme Court yesterday to strike down the Defense of Marriage Act. But it was the Chief Justice, John G. Roberts, Jr., who formed an odd coalition with both liberal and conservative justices in Hollingsworth v. Perry to find that the appellants lacked standing – thus leaving intact the District Court ruling invalidating California’s Proposition 8.

While DOMA’s demise will have broad impact at the federal level, it will not result in one more same-sex wedding. Proposition 8’s demise, however, in the most populous state in the union, is going to be huge. California Governor Jerry Brown and Attorney General Kamala Harris are already instructing the state’s 58 county clerks to get ready to issue marriage licenses to gay couples as soon as the Ninth Circuit’s stay is lifted, which is expected next month.

Justice Roberts’ own cousin, Jean Podrasky, is in a long term lesbian relationship and was present in the Supreme Court when it heard oral argument on the gay marriage cases back in March. She and her partner live in California and now intend marry. Interviewed last night, Ms. Podrasky explained that while she intellectually appreciates DOMA being struck down (thank you, Justice Kennedy), she was really most excited about being able to get married because Proposition 8 is no more (thank, cuz!).

Because Perry was decided on standing, we don’t really know how Justice Kennedy would have voted if the court had reached the merits of Proposition 8. But it wasn’t for his lack of trying. Kennedy’s dissent explained that he thought the proponents of Proposition 8 did, in fact, have standing to defend the law and prosecute the appeal. Justices Thomas, Alito and Sotomayor joined him in that dissent. It strains credulity to believe that if Kennedy had wanted to reach the merits and strike down Proposition 8 as unconstitutional that the four liberal justices would not have joined him – forming the same 5-4 majority as in U.S. v. Windsor, the DOMA case.

Alternatively, if Kennedy had voted to reach the merits and to uphold the constitutionality of Proposition 8, then I’m guessing he would have lost Sotomayor. But given Scalia’s often stated animus toward gays and results-driven jurisprudence, it strains credulity to believe that he would not have signed on to a merits-based decision upholding Proposition 8.

This means that the true hold-out on Proposition 8 was the Chief Justice himself, insisting on a strict procedural view of Article III’s standing requirements (to which Scalia later attached himself when he figured he wouldn’t be able to get to the merits).

This would not be the first time that John Roberts has taken a somewhat quirky position that saved the day – he being the switch in time that saved the Affordable Care Act from doom just last session.

Those following the Supreme Court’s treatment of marriage equality have long thought that Kennedy was leery finding a constitutional right to marry that would bind all 50 states. When framed as an issue of states’ right, Kennedy’s libertarianism and fidelity to principles of federalism allowed him to go as far as finding DOMA to be a federal intrusion into the traditional role of the states in defining marriage. The last thing he would want to do, then, is have the Supreme Court redefine marriage from only recognizing opposite gender marriages to mandating that the states perform same-sex marriages.

Yes, Kennedy was the author of Romer v. Evans, which struck down Colorado’s odious Amendment 2 that had disenfranchised its gay citizens, and exactly ten years ago to the day of yesterday’s rulings of Lawrence v Texas, which outlawed anti-sodomy laws nationwide (essentially making it legal to be gay in America). And, of course, of U.S. v. Windsor itself, using sweeping language to find Section 3 of DOMA that restrictively defined marriage to a violation of the liberty and due process clause of the Fifth and Fourteenth Amendments. But a constitutional right to gay marriage equality was just too far for him.

Can you imagine how bitter-sweet a victory yesterday on DOMA would have been without the accompanying abolition of Proposition 8? If so, there is really only one guy to thank, along with his cousin: the Chief Justice.

The phenomenology of marriage equality for all 50 states

Originally published April 30, 2013

9d669dfd9d4981ceda8624d01a6cf7fbOur current debate about gay marriage proves that Abraham Lincoln knew a thing or two about the constitutional interpretation. He believed that the founding documents of our Republic, from the Declaration of Independence to the Constitution, were aspirational. They contained the DNA that allowed each succeeding generation to form a more perfect Union.

US Constitution - We The PeopleYes, the Constitution as originally adopted restricted suffrage to white men. Yes, it counted African Americans as three-fifths of a person for census, but not voting, purposes. And yes, the restrictions of the Bill of Rights applied only to the federal government, not to the states.

But Lincoln believed the founding principles of equality, liberty and the pursuit of happiness for all to be self-correcting. And he believed the Supreme Court had a role to play in that self-correction, along with the amendment process specified in Article V of the Constitution.

Today the movement toward marriage equality shows the internal logic of the Constitution at work in real time. And for those who worry that the Supreme Court will only go half-way – striking down the federal Defense of Marriage Act, but allowing the states to define, and restrict, marriage as they please for the foreseeable future – the progressive trajectory of the Constitution will prove them wrong. Maybe not next month when the Court rules, but soon.

Thurgood Marshall came to understand the command to desegregate in Brown v. Board of Education with “all deliberate speed” to mean “slow.” I’m thinking the movement toward marriage equality may be a little speedier than that. And, in part, because the Constitution demands it.

It was always the design of the professional gay rights legal community to get the anti-DOMA cases before the High Court first. It offends even constitutional conservatives, like Associate Justice Anthony Kennedy, for the federal government to be in the business of defining marriage and intruding into a domestic matter traditionally left to the states. The only reason Proposition 8 is being decided concurrent with the anti-DOMA cases is due to the maverick legal representation of the guys who argued on opposites side of Bush v. Gore – Ted Olson and David Boies. Olson, a libertarian Republican, and Boies, a Democrat, likely believe in their cause, but you know what they say about the best of intentions.

Based upon the oral arguments, most believe the Supreme Court will strike DOMA from the U.S. Codes, but punt on Proposition 8 – perhaps finding the appellants to lack standing. Certainly, there was no indication at oral argument that there are 5 justices in favor of constitutionalizing the right to marry – in other words a 50 state solution. Instead, the federal government will have to respect the 19 states plus the District of Columbia that currently allow gay marriage or domestic partnership/civil unions and the other 32 states that don’t.

But that’s where Lincoln’s phenomenology of the Constitution kicks in.

Article IV, Section 1 provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

And Article IV, Section 2 and the Fourteenth Amendment requires each state to recognize the “Privileges and Immunities” of the citizens of all states.

A Supreme Court ruling next month striking down DOMA will invite a gay couple legally married in, say, Massachusetts, to move to, say, Georgia, and demand recognition of their marriage under the Full Faith and Credit Clause. That will set up the next big constitutional test for the Supreme Court to decide – and likely move us closer to marriage equality in all 50 states – with all deliberate speed.

Proposition 8, marriage inequality and Scalia’s dead constitution

Originally published March 27, 2013

During Tuesday’s oral argument before the Supreme Court on Proposition 8, Associate Justice Antonin Scalia really had only one line of questioning that he wanted Ted Olson to answer:

“[W]hen did it become unconstitutional to exclude homosexual couples from marriage?”

3ecd08de8cd2cf8434b362a842232491It was a trick question for Olson, representing plaintiffs who had prevailed in the lower courts in invalidating the voter-approved initiative that prohibited gay marriage in California. Olson knew full-well that Scalia is an originalist whose interpretation of the Constitution starts and stops at the time of the adoption of the clause in question.

Or as Scalia more colorfully put it during a college lecture back in January,

“[The Constitution is] “not a living document. It’s dead, dead, dead.”

Olson had any number of ways he could have responded to the inquiry:

  • In 1776 when the Preamble to the Declaration of Independence held that all men are created equal, endowed with certain unalienable rights, including “Life, Liberty and the pursuit of Happiness;”
  • In 1791 upon the adoption of the Bill of Rights;
  • In 1868 with ratification of the Due Process and Equal Protection Clauses in the Fourteenth Amendment;
  • In 1954 when the Supreme Court in Brown v. Board of Education struck-down “separate but equal” Jim Crow laws as unconstitutional;
  • In 1967 when Loving v. Virginia held anti-miscegenation marriage laws for mix-raced couples were a violation of the Fourteenth Amendment;
  • As late as 2003 in Lawrence v. Texas when the Supreme Court invalidated anti-sodomy laws on the basis of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections.

a46d1428dae3cc5f02fe39a0eaaec55eOlson started down this path, answering Scalia’s question with his own: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

But Scalia continued to insist, “Has it always been unconstitutional?”

Olson finally settled on this answer: “It was [un]constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. . .” But when pressed for a date certain, Olson conceded that he couldn’t give one as there was “no specific date” in an “evolutionary cycle.”

Without a definitive date, especially one that tracks back to the Revolutionary or Post-Civil War Eras, Scalia believes that he can’t touch Proposition 8.

Here’s the date I would propose for marriage inequality’s unconstitutionality: in about 3 months from now when the Court gets around to ruling on the case before it.

The answer to Scalia’s question is that the U.S. Constitution is not a dead instrument – forever sealed by hopes and fears of the 18th and 19th Century framers of our founding text and its key amendments. We have a Common Law system of justice, based not only upon civil law statutes but interpretation of those laws by the courts as handed down by judges and justices in each generation. We are governed by the doctrine of judicial view that Chief Justice John Marshall enunciated in Marbury v. Madison in 1801 that it is the duty of the courts to “say what the law is.”

If the Constitution were dead, nothing would ever progress. The amendment process incorporated in the founding document expressly envisioned change over time. And judicial review demands it.

If the Constitution were dead, the Court could not have relied upon modern social science in Brown to overrule Plessy v. Ferguson; on modern principles of equality in Loving to overrule Pace v. Alabama (1883); and on evolving social standards in Lawrence to overrule Bowers v. Hardwick (1986).

Scalia himself, in his majority opinion in District of Columbia v. Heller (establishing a heretofore unrecognized individual right to bear arms) looks to what weapons are “typically possessed by law-abiding citizens” to determine which classes of guns might, or might not be, deserving of Second Amendment protection. So evolving standards of gun ownership over the course of 200 years can be used to interpret the constitutionality of gun control laws. If Scalia were truly an “originalist,” he would have stopped at muskets and bayonets that were in common usage at the time the Bill of Rights was passed. Don’t actual human beings who simply want their marriages recognized in law at least deserve equal dignity with guns?

Luckily, if oral argument is any guide, it does not appear that Scalia will be among the majority of at least 5 justices that, sometime around June, will decide what the law of the land on marriage equality actually is.