Clue to gay marriage ruling was threaded in Obamacare opinion

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(RNS16-jun26) Members of the Gay Men’s Chorus of Washington, DC, celebrate after the Supreme Court announced its rulings in cases related to same-sex marriage Wednesday (June 26). RNS photo by Adelle M. Banks.

(RNS16-jun26) Members of the Gay Men’s Chorus of Washington, DC, celebrate after the Supreme Court announced its rulings in cases related to same-sex marriage Wednesday (June 26). RNS photo by Adelle M. Banks.

(RNS16-jun26) Members of the Gay Men’s Chorus of Washington, DC, celebrate after the Supreme Court announced its rulings in cases related to same-sex marriage Wednesday (June 26). RNS photo by Adelle M. Banks.

(RNS16-jun26) Members of the Gay Men’s Chorus of Washington, DC, celebrate after the Supreme Court announced its rulings in cases related to same-sex marriage Wednesday (June 26). RNS photo by Adelle M. Banks.

The Supreme Court ruling Friday (June 26) to legalize of gay marriage rested in pragmatic legal reasoning, the same approach in Thursday’s ruling on the Affordable Care — the ruling that saved Obamacare from a “death spiral.”

Justice Anthony Kennedy, author of the majority opinion in the 5-4 decision, described equal protection under the law as an inevitable step in the evolution of changing understandings of marriage across the centuries and essential for the safety and dignity of these thousands of gay and lesbian couples and their children.

“The nature of injustice is that we may not always see it in our own times,” Kennedy wrote after recounting the legal struggles faced by same-sex partners.

In his dissent, Chief Justice John Roberts wrote that the court had taken an “extraordinary step” in deciding not to allow states to decide the issue, according to NPR. And outraged Justice Antonin Scalia blasted the ruling as offering the “moral weight of a fortune cookie.”

At first look, there would seem to be no parallels between the statutory language wrangle at the heart of the ACA case (King v. Burwell) and the constitutional showdown in quartet of cases on the legality and recognition of same sex marriage across the nation (Obergefell v. Hodges).

However, the clue may be woven into the legal reasoning behind the decision in King v. Burwell in the opinion written by Roberts.

Roberts’ majority opinion seemed to argue a pragmatic concern for the real world impact of a ruling that could have cut off millions of people from access to subsidized health insurance coverage through state exchanges.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. To dismantle the law by ending the subsidies would “destabilize the individual insurance market in any state with a federal exchange, and likely create the very ‘death spirals’ that Congress designed the act to avoid.”

So how did such pragmatic reasoning play in the gay marriage ruling?

The justices knew the map of change: 70 percent of Americans live in places where same sex marriage is now legal. Only 13 states banned it.

Support of same-sex marriage by state. Graphic courtesy of Public Religion Research Institute (PRRI)

Support of same-sex marriage by state. Graphic courtesy of Public Religion Research Institute (PRRI)

They were aware of the polls on gay marriage: six in 10 Americans, a record high number, favor legalization nationwide.  

Kennedy certainly echoed Solicitor General Donald B. Verrilli Jr.’s argument that:

“In a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community . . . it is simply untenable — untenable — to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.”

Those facts-on-the-ground helped point a majority of justice toward a ruling that overturns all remaining state bans while four conservatives took a different approach, a text-based reasoning that looks no further than the Constitution, not to, 21st century facts.

Just  a few days ago Emily Bazelon elaborated on pragmatism and formalism in an analysis she wrote for the New York Times Sunday Magazine on how judges make up, or change, their minds:

“The idea that a judge should consider evidence about a law or a ruling’s effects has been a central tenet of legal thinking since at least the early 20th century. In that period, scholars known as legal realists challenged the opposing conception — usually called formalism — that law should logically derive from abstract principles. The realists wanted judging to be grounded pragmatically in evidence about consequences. Today the debate between legal realism and formalism is entangled in politics. Formalists say that realism (or pragmatism, a related concept) is just a cover for a judge to impose his or her own ideological values.”

Bazelon speculated that Roberts may be swayed by the pragmatic concerns of cutting off subsidies for millions of people – neatly foreshadowed the ruling.

And Justice Antonin Scalia – whom she called  “the country’s foremost formalist”  in the Sunday paper — wrote a scathing dissent on the ACA ruling. He called the majority opinion “interpretive jiggery-pokery.”

In the June 26, 2013, decision that overturned the Defense of Marriage Act, Scalia, the formalist, wrote a rhetorical question in his dissenting opinion: “[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?

Friday, in dissenting on gay marriage, his outrage  stratospheric. He wrote:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Let’s see what happens next. My bet, a bloody battle for national employment and housing non-discrimination laws as newlywed same-sex couples face the prospect of losing their jobs or housing with no federal protection. What facts on the ground will come to the high court then?

  • Be Brave

    “If you were of the world, the world would love its own; but because you are not of the world, but I chose you out of the world, because of this the world hates you.”
    – John 15

    As the homosexual activists and their legion of backers, crow on endlessly redefining of marriage and promoting homosexual behavior by “the majority,” Christians that don’t become debauched by the world and its ways will be the targets of redefined hatred from the majority.

    “Therefore, since Christ suffered in his body, arm yourselves also with the same attitude . . .. As a result, they do not live the rest of their earthly lives for evil human desires, but rather for the will of God. For you have spent enough time in the past doing what pagans choose to do—living in debauchery, lust, drunkenness, orgies, carousing and detestable idolatry. They are surprised that you do not join them in their reckless, wild living, and they heap abuse on you.”

  • Be Brave

    Are not we always reminded that “America is not a Christian nation and never has been.”

    So why are we surprised that we are the point in history that we are?

    The Justices that have a semblance of morality still left within them, have their legal hands tied by the power of the world and its ways.

    Some ancient Roman citizen and someone who was persecuted to his death by the lascivious licentious populace and legal leaders of his day, put it this way:

    “For we wrestle not against flesh and blood, but against principalities, against powers , against the rulers of the darkness of this world, against spiritual wickedness in high places.” – Ephesians 6


  • Billysees

    Be Brave,
    ” So why are we surprised that we are at the point in history that we are? ”

    Probably because of this mysterious verse —

    Man’s ways are of the Lord, so how can we understand our own ways?”…..Proverbs 20:24

  • Vicar Dave

    Historically, Marriage was the last sacrament created by and recognized in the Christian Church and marriage was before the Christian church and exists in the secular world and in other faith systems.
    In other words, the Christian church does not “own” marriage. We Christians in the beginning thought marriage was unnecessary. (Read Paul)
    In Canada, no church is required to perform same-sex marriages. It is a civil and tax matter, as are all marriages. Some churches recognize and bless the civil same-sex union as they do for all heterosexual marriages. All marriage that is church performed is recognized as civil with receiving a simultaneous church ask of God to bless the union.
    I expect this will eventually be the US case in all states. If a Church denomination believes that it needs civil support for its understanding of God, then the understanding of God by that group of Christian followers is very weak and is in reality a blasphemy in thinking about God which needs man’s…

  • Larry

    The irony being that without the anti-gay crowd insisting on using legislative muscle for gay marriage bans, we would not be discussing national adoption of gay marriage. If not for their malice and distrust of opinion against them, equal protection arguments would not come iinto play, creating judicial acceptance of it.

    Had they done nothing, the courts would not be involved. It would probably have taken another decade or so to be accepted by legislative means just due to voter apathy and veto powers.

    BTW the arguments supporting gay marriage bans are to put mildly pure dookie. Half hearted irrational premises and a thinly veiled threat of iincessant whining by bible thumpers.

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