The dust is beginning to settle, and some of the emotion stemming from the Supreme Court's decisions on Obamacare and gay marriage is beginning to wane. There is no doubt that both issues have been hard fought and are deeply divisive in our nation. The Affordable Care Act, Obama's signature legislation, was passed without any support from Republicans and in spite of the mountain of polling showing that Americans did not want the law. The Democrats didn't care. They were going to create their new entitlement no matter what. For the first time in 50 years, they finally had the opportunity and just enough support to set up the framework under which American medicine will become socialized. All liberal fantasies are being fulfilled. Government bureaucrats (that they appoint) will control one seventh of the nation's economy. Liberals will have another powerful entitlement to use to win elections. The law has already cost companies, patients, and doctors a fortune to implement, and is less popular than ever.
But none of that is the Supreme Court's fault. As Justice Roberts said in his first Obamacare opinion: "It is not our job to protect the people from the consequences of their political choices." Elections have consequences, as the President is so fond of saying. Justice Roberts, of course, is both right and wrong in his statement. No one disputes that the Supreme Court should, in theory, exercise restraint when reviewing most legislation. Obamacare was lawfully passed and signed into law by the President. That is how our system works. Theoretically, the Supreme Court should review that law for Constitutionality only, and then move on. That is precisely what they did in both Obamacare decisions. If you don't like the result, don't vote for Democrats. At the end of the day, President Obama campaigned on Obamacare, promised radical changes to our health system and won two elections. The American people chose the conditions under which Obamacare could pass.
At the same time, Justice Robert's statement is woefully inaccurate. It is, in fact, the principal role of the Supreme Court to protect the American public from the consequences of their political choices when those political choices violate the Constitution. In fact, when first created, that was the Court's only job. The concept of "Judicial Review," didn't develop until Marbury v. Madison was decided in 1803. Before that time, the Supreme Court was the Constitutionally appointed firewall against fascism, radical ideology, and the tyranny of the majority. His statement to the contrary was unnecessary and will be viewed as an unfair swipe at the opponents of Obamacare. Justice Roberts further divided the country, and made the Court look politicized. A politicized Court is a Court without credibility. Having no army with which to enforce their rulings, the Court's credibility is its only weapon. The Court got the decision generally right, but at great cost to its prestige.
In Obamacare II, Justice Roberts again led the majority to uphold the law. He and the Court have been savaged by conservatives for "saving Obamacare" and "rewriting the legislation." These criticisms are misplaced. The Court applied the principal rule of statutory construction to Obamacare: "Where possible, interpret the law in a way that upholds it." The reason that is the principal rule of construction is because the alternative would leave the Court with far too much power. Imagine a world in which a Court could strike down any law because of a misplaced word, or a single incongruent statement in a 20,000 page bill. There would be no predictability in the law. Businesses and individuals would have no idea whether a law will be upheld or stricken on the basis of some confusing language. Every time Congress acted, implementation would have to be delayed for years while the Supreme Court reviewed the law.
To ask the Court to construe Obamacare in a way that would have destroyed it is to ask the Court to violate that most basic tenet of judicial review. The Court applied another fundamental tenet of judicial review when it looked to "legislative intent" to find the language to uphold the law. Again, this is unremarkable. For centuries, here and in other democracies around the world, courts look to the legislative record to determine what the legislature meant, within some margin of error. While I agree that the Court stretched to "rewrite" the language in the statute, that is more a reflection on the legislators enacting a poorly drafted law than it is the Supreme Court.
Fast forward two days. Justice Roberts dissented from the Court's decision on gay marriage. Gay marriage is another tough issue that deeply divides the nation. Unlike Obamacare, however, most Americans actually support the legalization of gay marriage. Regardless of any religious views, it is a fact that homosexuality is as old as the world itself. So is traditional marriage. This is not some new development in the world. For example, our founding fathers undoubtedly knew that the Greeks were practicing homosexuals when they began borrowing ideas on democracy. It did not stop our founders from embracing those ideas, along with much of the architecture and rhetoric used by a society that not only tolerated homosexuality but often encouraged it.
Still, gay marriage represents a shift in American morality for which a large minority of Americans are not ready. The debate had been on-going and opinions were being slowly changed. The democratic process was working, and homosexuals were making progress on their issue. The Supreme Court stepped in and, in the words of one of my favorite columnists, "short-circuited the process." Critics argue that the Court should have allowed the democratic process to work, and that it was supremely arrogant for the Court to intervene. Neither argument is compelling.
The basis for the Court's ruling is the Fourteenth Amendment to the Constitution. The relevant portion of the 14th Amendment is:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Fourteenth Amendment is very broad. It protects "any person" from the denial of life, liberty or property without due process. It also provides "any person" with "equal protection" under the law. "Any person" includes homosexuals. "The law" includes the marriage laws in this country. It is that simple.
This is not to say that these rights cannot be limited. Legislators may pass laws regulating marriage and even depriving two people of the right to marry, provided there is a compelling reason to do so. So, for example, prohibiting incestuous marriage has been upheld because, among other things, there is a high risk of birth defects. That reason is compelling. For decades, however, courts and legislatures have struggled to articulate any compelling reason to prohibit gay marriage.
Opponents, of course, point to their religious beliefs. Homosexuality, they say, is condemned in the Bible and is otherwise immoral. They point to the moral decay in our society, and the decline of stable family environments. But that's where the First Amendment comes into play: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It is the first clause that is at issue here. For the state to use the rule of law to impose the religious beliefs of one group or another on the rest of society is a direct violation of the Constitution. Gay marriage cannot be prohibited on that basis, especially where religious groups are themselves divided on the issue.
The Supreme Court's decision to strike down laws that discriminate against a specific group of people should come as no surprise. The only question the Court had to answer is whether homosexuality is a behavior or a trait. If it's a behavior, that is, if it's not inherent, then it may not be entitled to the same protections. On the other hand, if it's an inherent trait, like having black skin, then the right to equal protection is undeniable. The Court obviously believes that it is a trait, making the rest of its analysis simple.
Regardless of how you feel about these two Supreme Court decisions, the outcomes were inevitable. That said, the victory laps being taken by the White House and others serve only to deepen the divide. The right to dissent must also be vigorously protected, including the rights of the dissenters to exercise their conscience. We should all be careful in our rhetoric not to contribute to the poisonous environment surrounding these issues.
We should also be careful not to let these divisions dictate our policy or distract us from the other problems we face. I do wonder, for example, what Vladimir Putin thought of the rainbow White House. As we scrutinize our democracy, we should remain mindful of our uniqueness. In the Middle East, for example, homosexuals are being tortured and thrown from buildings. Christians are being crucified. Jews are being targeted for extermination. Whatever oppression or disappointment any American may feel, it pales in comparison to the oppression and disappointment felt by many others in the world.
Finally, let us also remember the stern admonitions from Justice Roberts and President Obama that elections have consequences. We are not oppressed, and we have the absolute right to change our government. We should take advantage of it.
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