Blog No 74 Part I. The Supreme Court: The Affordable Care Act, Same-Sex Marriage and Other interesting Issues.

Part I. The Affordable Care Act and Same-Sex Marriage

The end of the Supreme Court term produced two major decisions, on the Affordable Care Act and same-sex marriage, that generated extensive comment by politicians and pundits and drew attention in every form of media. There is little need at this point for extended discussion or analysis of the decisions, but we will offer some brief comments on them in this Part I. In Part II, we will comment on several other cases that we think might be of interest to our readers.

King v. Burwell: The Affordable Care Act

In upholding subsidies for purchasers of insurance on federal (as well as state) exchanges, the Court preserved the life of the Affordable Care Act (ACA) in more or less its present form for the indefinite future. The 5-4 decision of the Court reached that result by describing the language of the most relevant clause as “ambiguous” and then looking to what it determined to be the overall intent of the Act. From a standpoint of lawyerly (or judicial) analysis there is much to say in criticism of the Court’s approach and the dissents said it all in rather stinging terms. We believe that the dissents made a strong case and that the challenge to the Act was by no means as frivolous as the Obama administration sought to portray it. On the other hand, as we observed in a March 8 Special Bulletin, the flaw in the statute was not dispositive, that is, it could not be said to compel the desired outcome.

Chief Justice Roberts, as the author of the majority opinion, was the focus of many attacks for once again having saved the ACA by means of creative interpretation–as he had in the Sibelius case in 2012 where he had upheld the ACA by characterizing it as a “tax.” One may speculate (and it is no more than speculation) that in this case as in Sibelius, Roberts was influenced by a belief that, if possible, the fate of so major a piece legislation should lie in the hands of the political branches rather than the Court. It is also possible that Roberts here, and in Sibelius, wished to spare the Court as an institution from becoming the central issue in a presidential campaign.

In any case, the decision was something of a gift to Republicans. As we had pointed out in the March Special Bulletin:

[D]isposing of [the ACA] by way of a decision in King might have seriously adverse consequences for the country and the party. If the plaintiffs prevailed, there are any number of ways in which the Act might be fixed or replaced, but the prospect of getting any of them through our dysfunctional Congress is daunting. It would not be done quickly or easily, if at all….In the meantime, millions who are presently insured would be unable to afford insurance and would be forced back into the ranks of the uninsured. That would be a recipe for chaos and hardship and the blame for failing to provide a remedy would likely fall on the “governing party” in Congress. Thus, if Republicans listen to their heads and not their hearts, they should perhaps hope (albeit secretly) that Obamacare once again survives its encounter with the Supreme Court.

Subsequent to the decision in King, it has been widely reported that many Republicans came to the same conclusion.

None of which is to say that the ACA will not or should not be an issue in the 2016 election. While it has not been the unmistakable disaster that many predicted, it does have major flaws, some of which were noted in a recent posting of The Daily Dish. The Daily Dish is published by the American Action Forum, headed by former Congressional Budget Director, Douglas Holtz Eakin, and a recent posting summarized some of the current problems with the ACA:

Repeatedly in recent weeks, one has heard columnists, pundits and the president assert that “In many ways this law is working better than it’s supposed to.” Usually the focus is on the reduction in the uninsured, skipping past what a low bar for success this is: if you make it illegal to be uninsured and give people money to buy insurance, there better be fewer uninsured. But……

• Premiums are higher and deductibles are larger than was promised or would be under better reforms;
• The landscape is littered with expensive mandates;
• The promise of bending the cost curve remains unfulfilled;
• Being insured has not guaranteed actual access to providers; and
• Obamacare is damaging the labor market, businesses and economic growth.

On the other hand, it has become clear that Republicans cannot get along indefinitely by merely mouthing the slogan, “Repeal and Replace.” Increasingly, they will be under pressure to add some flesh to the bones of “Replace.” In this connection, we would urge them to consider our February 5 Guest Blog by Jeff Bauer, “Redirecting Health Reform: A Real Republican Opportunity.”

Obergefell v. Hodges: Same-sex Marriage

We should say at the outset that we yield to no one in our regard for traditional marriage. In fact, we are celebrating this year the fiftieth anniversary of our own share of that institution. It might also be said that when we began this illuminating journey, it would not have occurred to us that there was any other kind of marriage. Over the years, however, our view evolved, (much as the President’s did, but a bit more swiftly) and we came to believe, as a majority of the public now do, that there is no valid reason to deny the benefits of marriage to same-sex couples.

That said, we did have some reservations as to whether it was appropriate to recognize a constitutional right to same-sex marriage. We had reservations as to whether such a major step should be taken by the Supreme Court, as a matter of constitutional interpretation, rather than leaving it to the states and their legislatures, which were already moving in that direction. In the hands of the dissenting justices, our reservations became strong objections expressed in vigorous and sometimes strident terms. Nevertheless, we were, in the end, persuaded by Justice Kennedy’s majority opinion that a ruling on constitutional grounds was appropriate.

It is worth noting that despite the harsh tone of the dissents, they were mercifully free of the homophobic flavor found in some of Justice Scalia’s previous opinions. (For example in Lawrence v. Texas, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”) The dissents also gave little weight to the tiresome and groundless argument that permitting same-sex marriage would some how undermine traditional marriage. Only Justice Alito referred to this argument and did so in a relatively neutral way:

The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.

Justice Alito is obviously correct that the effect of same-sex marriage on traditional marriage, if any, will not be known any time soon. In our view, however, common sense suggests that any effect is far more likely to be positive than negative. (We have never been able to imagine the scene in which Harry says to his fiancée, “Well, Sally, I know we’re engaged, and want to raise a family, but now that Tom has married Bob, and Susie has married Helen, I don’t think there’s really any point in our getting hitched.”)

The dissents expressed concern as to the impact that the ruling may have on the religious freedom of those who disagree with the ruling and who retain on religious grounds a belief that only a union between a man and a woman qualifies as a “marriage.” As Chief Justice Roberts explained:

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage….The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

 

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage….There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

We take the Chief Justice’s concerns to be sincere, but in our view they are exaggerated–as judicial predictions of dire consequence found in dissenting opinions  often are. To begin with, the recognition of same-sex marriage does not, by itself, create remedies for discrimination; those must be provided by separate laws. Such remedies already exist in a number of states and, as Roberts acknowledged, include accommodation for religious practices. The decision in Obergefell may or may not provide a stimulus for more laws, state or federal, against discrimination, and thereby generate more controversies, but if it does there is no reason to fear that such controversies cannot be resolved, as they have in the past, in a manner that gives due regard for religious freedom.

As a political matter, the ruling received a uniformly negative response from Republican candidates for president. That is not surprising in a party where the latest polls show same-sex marriage approved by only 34%. It thus appears to be yet another instance in which Republicans are swimming against the tide. Same-sex marriage is approved not only by 65% of Democrats but by the same percentage of Independents. Nevertheless, there is an important difference as to how different candidates reacted. Governor Bush, Senator Rubio and Governor Kasich all indicated their disagreement with the decision but recognized that it reflects the law of the land and indicated a desire to turn to other issues. On the other hand, other candidates came forth with a variety of bizarre responses: Governor Scott Walker called for a constitutional amendment to overturn the decision; Senator Ted Cruz suggested that states that were not parties to the case ignore the ruling and called for periodic “judicial retention elections;” Governor Mike Huckabee suggested that civil disobedience might be called for; and Senator Rand Paul suggested that states cease issuing marriage licenses to anyone.

In the days preceding the Supreme Court’s decision, The Washington Post’s Daily 202 bulletin predicted that, if the Court recognized a right to same-sex marriage, support for a constitutional amendment would be important to conservatives and might even become a litmus test in GOP primaries. We do not generally think much of litmus tests, but we are willing to make an exception in this case for a reverse litmus test: We will not support any candidate who proposes a constitutional amendment to overturn the decision in Obergefell or urges that it be ignored or defied. We take that position not only because any such response would be a thoroughly bad on idea on the merits, but also because, having no chance of being implemented, it would be simply a crude and cynical gesture to the evangelical Christian segment of the Republican base. We have had quite enough of those, thank you very much.