Obamacare, Gay Marriage and our High Court

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“I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?” — Chief Justice John Roberts, in oral argument on Obergefell v. Hodges

Like him or not, you have to admit that Chief Justice Roberts has an incisive mind.

Our Supreme Court relies on abstractions far more than on practicalities and the real needs of real people. Sometimes the abstractions are fuzzy ones like treating corporations as phantom people. Hence Citizens United. But if you like abstractions, you won’t find many judicial minds that can handle them better, and make them simpler and clearer, than John Roberts’.

No other Justice signed onto his opinion upholding Obamacare’s mandates. But it was simplicity itself. The mandates are a tax, Roberts wrote. Congress can tax. So they are within Congress’ constitutional power.

Simple? You bet. But also brilliant on many levels.

Congress didn’t call the mandates a tax, to be sure. But for smart people (and, one hopes, jurists), a name is just the label on the box. It’s what’s inside the box that matters.

Roberts understood that the mandates are a tax because their primary purpose is to raise money. No one in Congress (or anywhere else) wanted to bash people too poor or too misguided to buy health insurance. No one wanted to make their lives even harder than lacking health insurance already does.

Advocates of broadening the blessing of health insurance just wanted to raise money to finance it. That’s a tax. The contending label—a penalty—just wasn’t as credible. The mandates may in fact discourage some free riding, but their primary purpose was and is to raise money, which they do indirectly even as they penalize.

Roberts also understood history. Poll after poll after poll said that around two-third of us Yanks want a single-payer option. We would all like to be able to enroll in something like Medicare before we turn 65. So why don’t we have that option? Because it would cost money, a lot of money.

Ever since Ronald Reagan led the Boomers’ revolution of selfishness with the rallying cry “It’s your money,” taxes have gone relentlessly down. His revolution may have reached its high-water mark in the first decade of this century. There was no way then, and probably now, too, that any Congress in Yankeeland would pass a tax big enough to fund Medicare for all.

So the President and his allies in Congress used a time-honored political ploy. They hid the ball and used a false label. They imposed a regressive tax upon young, healthy, health-insurance refuseniks so they could get a bill through Congress and insure some twelve million people (and still rising) who wanted insurance but didn’t have it.

The bill they came up with was awkward, ungainly, and far far, too long and complex. But it did the job. And it did it by letting Congress fool itself and the people by calling a tax something else.

The Chief Justice called a spade a spade, as any good jurist should. He also chided Congress, impliedly and gently, for trying to pull the wool over the people’s and history’s eyes. But that was mere peccadillo, a little white lie among old marrieds. Millions of people now have gotten insurance and, with it, access to the world’s best but most expensive health care.

Now comes gay marriage. If “Joe” in Roberts’ example is bisexual and can’t make up his mind, a law barring gay marriage directly disadvantages Tom in favor of Sue. It’s hard not to see discrimination in that.

Sure, if the indecisive Joe chooses Tom, they can still go to a lawyer and have a contract drafted. But that contract would have to be long, complex and clever.

In the end, it could never have exactly the same effect as marriage. Why? Because (among many other things) contracts to make wills are unenforceable in most jurisdictions. No mere contract can produce the same effect as state laws governing the effect of one’s demise without a valid will, let alone such things as community-property and dower rights.

So Joe and Tom would have to spend a lot of money for legal work, and they still wouldn’t have what Joe and Sue could have by paying a few bucks for a marriage license. How does that scenario not discriminate? Justice Roberts knows how to put the right label on the box.

Justice Kennedy has a different mental fulcrum. He frets about the hubris of “changing” a definition of marriage that has lasted for millennia.

But Justice Kennedy ought to realize he’s a bit late. What compels change in our definition of marriage (for civil and legal purposes, not religious ones) is not he or the Court. Thomas Jefferson, our Civil War, and Abraham Lincoln were there first.

When Jefferson wrote “all Men are created equal,” he obviously wasn’t thinking much about himself. He was a slaveowner all his life. Of all his slaves, he freed only his beautiful mistress, Sally Hemmings, and her children by him. The natural consequences of his beautiful language would have changed his own life completely, but he didn’t live to see them.

It took our bloodiest war ever and Abraham Lincoln’s political genius to enshrine the national credo that Jefferson drafted in our positive law: our Civil War Amendments (13th through 15th). Once that was done, the dominoes began to fall: slavery, bans on interracial marriage, bans on interracial sales of real property, discrimination in housing, discrimination in restaurants, discrimination in voting. Could bans on gay marriage be far behind?

It’s a shame that today’s jurists feel they have to hide their wisdom behind a veil of fuzzy abstractions. You can thank Justice Anonin Scalia, the Darth Vader of American jurisprudence, for that. For him and his “original intent” minions, considering people, practicalities and consequences in the real world is making “policy,” and therefore outside the bounds of judging. These jurisprudes (pun intended) would rather guess at the wishes of Founders dead for over two centuries—like the Taliban divining the mind of Mohammed—than think for themselves as Solomon did.

What a different nation we might have if our Justices tried to emulate Solomon! They would have understood that giving mighty corporations (and therefore their owners and managers) the same rights of speech as ordinary people would drown out the people’s speech, corrupt our entire political process, and make our democracy a sham. They might have balked at exalting the bullies on Fox and their secret counterparts, the producers of attack ads.

More to the point of this essay, a bit of Solomonic wisdom might allow our Justices to examine the goals and motivations of advocates and opponents of gay marriage. Advocates just want the rights, benefits and privileges that everyone but gays now has. Opponents want to stop them. Why? Not because gay marriage harms them or marriage in any real way, but because they just don’t like the idea.

In essence, those who want to ban gay marriage want to control others’ lives because of a purely abstract and mostly religious distaste. How American is that?

After having made what may be the most consequentially and catastrophically stupid decision in the Supreme Court’s entire history—Citizens United—our Court, I hope, will dip its toes gingerly and delicately into the forbidden waters of “policy” this time. I hope it considers the real needs of real people, the slow and sporadic progress of our nation toward its historic credo of equality, and the consequences of a decision one way or another in the nation we have now, not in long-vanished Colonial America.

Our good Justices might even consider their roles as de-facto leaders of our culture, which is still the spearhead of human social evolution. Having done so much damage by looking backwards at fuzzy abstractions, they might bring themselves back to the real needs of real people on this Earth in this day. If they do so, I expect and trust they will strike down discriminatory bans on gay marriage by at least a 6-3 majority.

Footnote 1. How people who repeatedly tar Obama as a “socialist” can complain about this false labeling beggars the imagination. False labeling is a tried and true refuge of political scoundrels of all types. It’s the tool they grab reflexively when they have nothing that actually works. Our Supreme Court has the power and the duty to put the right label on the box.

Footnote 2. How people can blame Obama for this mess of a law mystifies me. Our over-lawyered Congress and its staff drafted it, negotiated it, debated it and passed it. All Obama did was ask for it and, eventually, support it as better than nothing, which it is. Just ask the 12.5 million-plus people who have health insurance for the first time.

Footnote 3. Like the “war on terrorism,” the notion of “harming marriage” is a self-evident absurdity. How do you make war on a noun? How do you harm it? It’s not sentient. It’s not even alive or physical. It’s an abstraction. In reality, “harming marriage” is just a euphemism for “I want things my way but can’t say why.”

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