No news is actually excellent news

It’s not that nothing happened…but today, when the justices of the Supreme Court of the United States decided not to take up any of the pending cases on same-sex marriage, as they were expected to, the decision not to decide—at least not yet—was another sign that homosexual Americans can look forward an end to legalized discrimination sooner rather than later.  Some of them saw no reason to wait—same-sex marriages started in Virginia within hours of the news this morning.

The decision not to hear arguments in any of the cases where federal appeals courts had in essence ruled in favor of same-sex marriage means that those rulings stand, clearing the way for legal same-sex marriages in as many as 11 more states, bringing the number of states on the right side of history to 30 so far (and don’t forget the District of Columbia!).  Vox.com has a good explainer here of what today’s actions mean, with links to an update on where each state’s court case stands and graphics showing how gay marriage is being recognized in law as the right thing to do even in places where many citizens disagree.  But that’s what courts are for, to enforce law and equity in the face of majority ignorance.

Why did the justices decide as they did?  I don’t know, and the justices are not compelled to explain.  But it means that, for whatever reason or reasons, there weren’t at least four justices who were willing to take one or more of these cases right now.  I’ve read some theories that the court decided not to hear any cases because there was no disagreement: all the pending court cases were in favor of allowing same-sex marriage, so they felt there was no conflict that required their special wisdom to resolve.  The argument goes that once there are one or more cases with the opposite finding, the nation’s highest court will step in; I guess we’ll see if that’s so, but this court’s ruling in Windsor v. United States overturning the Defense of Marriage Act as a deprivation of equal protection under the law should give a good hint what they might say.

I’ve said it before (“SCOTUS dumps DOMA: fair, simple, American”), and I’d like to say it again:

This is not about what one religion or another teaches about homosexuality; this is about how the civil law treats American citizens regardless of their religious belief, or their gender or their race or national origin.  A religion is free to believe and teach what it wants about the morality of homosexual behavior or same-sex marriage, and its teachings and laws are important to the members in good standing of that particular faith.  But those teachings are not binding on Americans who are not members of that denomination.  The civil law, which orders how we all deal with one another in the secular society outside the confines of our many private clubs, is blind to such moral questions.  States have the right to decide who can “marry” and who can’t, and the federal government has to treat all “married” couples in the same way, regardless of the gender of the spouses.  Simple, really.  Fair.  American.  Congratulations, U.S.A., on another successful day at the office.

First things first–let’s start with the facts

It is said that there are two things you do not want to see being made: sausage, and legislation.  I’m of the opinion that a third thing on that list should be the news—you don’t want to see how a news story comes into being.  But Tom Goldstein, the publisher of SCOTUSblog.com, wants you to see what happened behind the scenes last month in the national reporting of the Supreme Court’s decision on the Affordable Care Act.  In his in-depth post-mortem Goldstein (who has a dog in this fight, to be sure) and his staff pieced together what happened at CNN, Fox News Channel, the White House, and SCOTUSblog.com in the nine minutes between when the court’s decision was handed down and when the error-filled reporting of the decision ended, including how

  • hackers tried to bring down SCOTUSblog
  • the court’s own website failed due to the heavy traffic, so no one outside the court building could access the decision
  • a lack of thoroughness led CNN and Fox to run with incorrect interpretations of the opinion, and
  • people who’d seen those incorrect TV reports refused to believe they were incorrect when confronted with the truth

CNN and Fox News have come in for a lot of deserved criticism for initially reporting the story incorrectly.  Yes, I know they were trying to get it first but so was everyone else, and they waited long enough to understand what the court had ruled before reporting it.  In fact, Bloomberg was first—less than one minute after the chief justice began announcing the decision from the bench—and they got it right!

From what I learned in this piece, I find it disturbing just how much brain power was brought to bear by these two networks that day and still they got it wrong.  Disturbing, but not surprising.  Yes, people make mistakes; but people who care more for flash than for accuracy—for generating heat rather than light—are more likely to make careless mistakes.  Avoiding careless mistakes is—or should be—of paramount importance in this business.

But both CNN and Fox exposed themselves to potential failure by

(a) treating the decision as a breathless “breaking news” event, despite the fact that everyone knew when the opinion was going to be released (and the mandate won’t take effect until 2014), while at the same time

(b) not putting sufficiently sound procedures in place to deal with the potential complications, and

(c) not placing more faith in the consensus view of the wire reports.

To put it another way: read the damn opinion before presuming to tell me what it says.  That shouldn’t be too much to ask, whether reporting a Supreme Court decision or a school board meeting or a fender bender.  Bill Kovach and Tom Rosenstiel suggest that in order “to provide people with the information they need to be free and self-governing,” which is the purpose of journalism, the journalist’s first obligation is to the truth.  Sometimes that can take more than just a few minutes to learn, but we don’t mind waiting.

Other opinions–

Health insurance law ruling will refocus fall campaign–away from the most important issues!

Let the predictable caterwauling begin: today the Supreme Court upheld the constitutionality of President Obama’s signature domestic policy achievement, the Patient Protection and Affordable Care Act, with Chief Justice John Roberts leading the majority on the 5-4 decision.

The heart of the disagreement over the law is its requirement that each of us Americans purchase health insurance, and the court has now ruled that the requirement does not violate the Constitution.

During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.

Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr. defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.

Paul D. Clement, representing Florida and 25 other states objecting to the health-care law, argued that Congress exceeded its power in passing the law, which he said compels people to buy a product.

The court rejected Obama administration’s commerce-clause argument, but ruled 5-4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”

Neither the plaintiffs in the case nor the Obama administration had argued before the court that the individual mandate was a tax.

(In fact, that is the point made—the only point made—in the story I saw when I clicked on the lead headline on FoxNews.comthis afternoon.)

The decision means that implementation of the new law should proceed, with the aim to get health insurance coverage for tens of millions of currently uninsured Americans; these are the people who currently access the most expensive health care around through emergency rooms and charity care, medical care that those of us who pay taxes are already footing the bill for anyway.

So, that’s settled.  Or not.  Arguably, the real heart of the disagreement is that this is Obama’s plan, and people who had supported similar health care insurance law revisions in the past (like the conservative Heritage Foundation and many Republicans; like the Commonwealth of Massachusetts, W. Mitt Romney, Gov.) opposed this one because it was Obama’s plan.  People like Mitch McConnell, and others who have proudly and publicly asserted that they will do whatever is required to make Barack Obama a one-term president (for whatever reason).

The dissent in the case will only fuel their fire: it argues that the Obamacare mandate that individuals purchase a product—health insurance—and its threatened denial of some Medicaid funding to states for non-compliance both unconstitutionally exceed government authority, and that since those provisions are crucial to making the system work, the entire statute should be tossed out…hmm, not much room for compromise here, I guess.

It’s unfortunate that the divide on the court was (except for Roberts) by perceived political ideology—for many people that’s going to reinforce the idea that the justices make their decisions based on politics rather than the law, and that will reinforce the left/right division in politics.  But it could have been worse: as David Franklin from DePaul University’s College of Law argues in Slate, Roberts found a way to uphold ACA in order to save the integrity of the Supreme Court.

A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

And, of course, health care is now likely to become the distraction center for a presidential campaign that I’d hoped would hold its focus on employment and the federal budget.

(We don’t need to spend time discussing how, in their rush to be first with the news, CNN and Fox both got the story completely wrong, do we?  Fish in a barrel…)

Here’s a smattering of the early reports on the court ruling, for your edification and delight: