Brown v. Board of Education; United States v. Windsor: do they belong together? Yes they do: today’s U.S. Supreme Court ruling in the Windsor case is just that historic. In a very specific and non-technical way Justice Anthony Kennedy’s opinion makes clear what the 5-4 court ruling says the Constitution requires: the “[Defense of Marriage Act] is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” You can read the professional reports on the decisions announced today here and here, and elsewhere, but here’s my take:
All people deserve equal treatment under the law. If the federal government grants certain legal privileges to dual-sex couples who are legally married under the laws of their state, the same privileges must be available to single-sex couples who are legally married under the laws of their state. Equal treatment; fairness. The court did not rule on the constitutionality of gay marriage today; it ruled on an issue of equality before the law. In refusing to rule on the Hollingsworth case regarding California’s Proposition 8, which outlawed gay marriage in the state, it sidestepped ruling one way or another on the constitutionality of gay marriage…perhaps another day. But that decision does have the effect of re-legalizing gay marriage in California, making it state #13.
In practical terms the Windsor ruling means same-sex couples should be treated the same way as opposite-sex couples when it comes to federal tax law and Social Security and insurance and immigration, all that federal stuff. In fact there are more than a thousand benefits coming into play here, and McClatchy does a good job summarizing that here. And for fun, TV Guide summarizes the celebrity reaction to the rulings here.
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.
A follow-up on Thursday’s Supreme Court Obamacare ruling:
The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them. Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.
A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional. Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues. Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.
Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote. Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity. But still, he was on the right track…