The Supreme Court's decision on Obergefell

Immediately after the Supreme Court's ruling on King v. Burwell, which I had to grudgingly admit has to be accepted because the Court is the final arbiter, has come another ruling about which I am much happier. Justice Anthony M. Kennedy has written the decision, as he has in just about every decision affecting gay rights. And as one would expect of a Kennedy decision, it was forthrightly in defense of gay couples' rights:

No longer may this liberty be denied. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.

Both this decision and the previous one in King v. Burwell, of course, can be considered “liberal,” which clearly shows why I cannot really consider myself to be either “conservative” or “liberal.” I see the King decision as misguided, while the Obergefell decision as a positive step forward in granting rights to an often-denigrated group of people. So my reaction to these two “liberal” decisions is quite different.

I would like to say two things to people opposing this decision:

First of all, this decision does not — as many opponents claim — “redefine marriage.” Marriage is still the union of two people who love each other into a household. All that changed is that couples who were denied that right now have it. It no more changes the institution of marriage than extending the right to vote to 18-year-olds (when the minimum age had traditionally been 21) redefined the act of voting, and I see no difference between these as a simple extension of rights to those who did not previously have them.

And second, this decision does not infringe on anyone's religious freedom. A Catholic priest has not ever been required to officiate at the wedding of a divorced person, counter to his religion, nor has a Jewish rabbi ever been required to officiate at an interfaith wedding, and nobody will require either to perform a same-sex wedding if he believes his religion does not permit it. (Many rabbis, of course, do perform same-sex weddings, as well as interfaith ones; Jewish positions on both of these vary. But those who will not, may continue to refuse.) As to bakers, florists, etc., I wonder how many of them insist even now that the people to whom they provide services be legitimately married. Do they check the marriage licenses of the couples? If anyone wanted to order a wedding cake from a baker, would the baker refuse to provide one if the customer is not really getting married? I doubt it. The baker who opposes gay marriage on religious grounds is not facilitating the wedding of which he disapproves; he is just baking a cake in a design which is regular for wedding cakes and selling it to a couple of people that he doesn't consider should be married. I doubt that he would even check if a couple that happens to be too closely related, in violation of the Bible, ordered a wedding cake, or even if a man and woman who really do not seriously intend to marry do so.

Reports I hope are true

Today the Supreme Court heard the actual arguments on the individual mandate in the health care law. (Yesterday, they only considered the question as to whether the law was subject to the terms of the Anti-Injunction Act, which would, if so, mean challenges could not be filed for a few years. And yesterday it appeared that just about all the Justices, liberal as well as conservative, agreed that it was not.) And reports seem to show that there is at least a majority (including Justice Anthony Kennedy, whose decision is often the one that makes a majority) that will declare the individual mandate unconstitutional. (See also this report.)

I hope those reports are accurate. If ever there was a case of overreaching by the Congress, this seems to be one.

(David Frum disagrees. And usually I agree with a lot of Frum's ideas. But he's dead wrong here.)

And now the final test of "Obamacare"

One thing that is very special about the United States is the importance placed in compliance with our Constitution. We have a Constitution that is over two centuries old, and it is agreed that all brabches of our government must abide by it. (By contrast, in the United Kingdom, Parliament is all-powerful. It has been said that the only thing that Parliament cannot do is “make a man a woman, or make a woman a man.”) The constitutionality of laws enacted by Congress and signed into law by the President is always open to challenge before the Supreme Court. And the court began today to take up the so called “Patient Protection and Affordable Care Act” of 2010 — frequently called “Obamacare.” Whatever this court decides, it is certain to be as controversial as Roe v. Wade, and all of us are waiting with bated breath to see what they decide, since there are a substantial number of lower court judges who have made conflicting decisions on the question.

To me, there is no question; the law is clearly unconstitutional. Congress cannot make people buy a private product like health insurance. The argument that states make drivers buy auto insurance is irrelevant — Congress is bound by the strictures of Art. I, Sect. 8 of the Constitution (and a few additional paragraphs in some of the amendments that give Congress the right to enforce those amendments by appropriate legislation), while the States have powers, by virtue of the Tenth Amendment, to do a lot of things that the Federal Government cannot. But some people claim that the commerce clause of Art. I, Sect. 8, or perhaps the taxation clause of the same article, gives Congress the power. And the Supreme Court does not always rule in conformity with the way I would read the Constitution: one recent example is Heller v. District of Columbia, where the Court invalidated D. C.'s gun control laws based on its reading of the Second Amendment. So we have a nervous three months or so to wait before the Court's actual decision comes out. Perhaps, though, people attending these hearings will be able to discern, from the questions the Justices ask the lawyers arguing the case, how they are likely to rule — or more specifically, how Justice Anthony Kennedy is likely to rule, since the others, by their general ways of reasoning, are almost certain to divide 4—4.

It is going to be a long wait.

The 9th Circuit Court's ruling on gay marriage

The 9th Circuit Court of Appeals has issued an opinion (Perry v. Brown) on California's Prop. 8 anti-gay-marriage vote. In keeping with a Supreme Court doctrine that judicial rulings should be as narrow as possible, covering only what is absolutely necessary, the ruling didn't try to establish a Constitutional right to marriage — which supporters of gay marriage would have liked to see — but merely stated that Prop. 8 was invalid simply because it took away rights that had already been possessed by gay people (as a result of a California court decision). And they referred to another decision, Romer v. Evans, by the Supreme Court, that prevented Coloradans from voiding already-passed anti-discrimination laws affecting gay people. And therefore it applied to California, but no other state.

The Religious Right will, of course, appeal, but even assuming they lose and the 9th Circuit Court's decision stands, nobody outside California can gain much from it. But it is an incremental win for equality. And that's a plus.

One thing is clear: By citing Romer v. Evans, the Court has made a clear appeal for the support of Supreme Court Justice Anthony Kennedy. He is often the deciding Justice in 5-4 decisions, and he wrote the opinion in Romer v. Evans.