Saturday, June 27, 2015

Friday, June 26, 2015


It has been an interesting week.  Just a couple of thoughts on the decisions handed down from the bench by the Supreme Court of the United States.   First in the decision in King v. Burwell the court held by a vote of 6 to 3 that words plainly written don’t really mean what they say and that if necessary can be made to mean what they want.

In Chief Justice Robert’s majority opinion plaintiff’s case rests on the meaning of the term “an Exchange established by the State under [42 U. S. C. §18031]” and as he says “In other words, three things must be true: First, the individual must enroll in an insurance plan through ‘an Exchange.’ Second, that Exchange must be ‘established by the State.’ And third, that Exchange must be established ‘under [42 U. S. C. §18031].’”

The majority finds that “an Exchange established by the State” really means any exchange whether established by the State or the Secretary of Health and Human Services.  They find rational for this in noting that the bill has a number of poorly worded sections leading to ambiguity, because it was written in secret (behind closed doors) and not thoroughly debated, as has been the normal expectation of a law.  I would just point out the reason this law has been challenged is precisely for that reason, the people and their representatives did not have adequate time to vet the law and its impact.

Justice Scalia, joined by Justice Thomas and Justice Alito, in his dissent notes, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State.’ And it is hard to come up with a reason to include the words ‘by the State’ other than the purpose of limiting credits to state Exchanges.”

The court has shown in previous rulings its support of this law, and it continues to do so, reflecting a position that laws its Justices like are treated differently than laws they don’t.  When necessary, they will rationalize away troublesome statements if it furthers a desired social end.

Which brings us to Obergefell v Hodges.  In this case the plaintiffs challenged the states of Ohio, Michigan, Tennessee, and Kentucky over their definition of marriage as the union of one man and one woman.  The court held in a five to four ruling that plaintiffs were guaranteed the right to marry under the protection of the 14th amendment.  Justice Kennedy wrote the majority opinion, and was joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan.  While Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito all wrote dissenting opinions (with a lot of joining of each other)

Justice Kennedy notes in his opinion, “the history of marriage is one of both continuity and change.  Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”  The majority further notes “… lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

Chief Justice Roberts offers an interesting dissent that speaks to the overreach of the majority acting in the role of a legislature in defining marriage.  I agree with his closing statement. “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.”

Justice Scalia in his dissent also reflects my concern that the court, in order to achieve a desired social outcome has put an end to the democratic process we all have a role in.

“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing

their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”

Justice Scalia points out with this ruling, “No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect, and therefore the court takes on to itself the moral judge for the nation.  Rather than expect that the People will modify the Constitution or write sound law the nine justices of the Supreme Court will lead the nation.

Justice Thomas takes a more libertarian view of the majorities overreach stating, “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”  He also voices a concern over the inevitable impingement on the religious freedoms this nation has long prided itself on.

Justice Alito also voices his concern over the Court’s decision to interject itself into the political debate and the potential for future overreach based on this decision.

So is this how we begin the destruction of the representative democracy in the United States?  Perhaps, or not, but I am sure of one thing.  Just as we have seen in Roe v Wade, the best intentions of the Justices will lead to conflict and division within the Nation that will not go away just because they will it to.  It will also not end with this definition of marriage as the union between two people.  It is simply a matter of time before some other group seeks a broader definition in the name of personal liberty, makes enough noise, and the court, convinced they know what is best grants it.

What is most disturbing is the belief by the majority that trampling on the meaning of words, specifically the words of our Constitution are justified by the end.  For me this is a parallel to the Senate of Roman anointing an emperor and letting him rule by fiat.  We seem to be heading down the path where majority rule is a quaint but archaic concept.

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