Supreme Court Affirms Obamacare & Marriage Equality

In this March 23, 2010, photo, President Barack Obama
signs the Affordable Care Act in the East Room
of the White House in Washington.
 (AP Photo/J. Scott Applewhite, File)

This year's Supreme Court of the United States session is nearly over, but the court has just issued two major decisions that will resonate for years to come. In the first, in a 6-3 decision to King v. Burwell, a lawsuit brought by four conservative plaintiffs to challenge the legality of subsidies for people buying plans on the federal Affordable Care Act--a/k/a Obamacare--exchanges, the court ruled in favor of the landmark law. Conservative Chief Justice John Roberts Jr., who had previously voted with the majority in the 2012 case NIHIB v Sibelius to uphold Obamacare's mandate as a tax, again wrote the winning decision, stating that the ambiguous wording of the statute, "established by the state," should be understood in light of Congress's intentions, which were that the subsidies should not be limited to state-established exchanges, but were legally extendable to the federal ones as well. Roberts was joined in his decision by Associate Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, and Sonia Sotomayor. Dissenting were conservative Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

As a result, not only will the 6 million+ people in danger of losing their subsidies retain them, but this ruling effectively ensures the existence of Obamacare through the end of the President's term. What is also clear is that given its proven successes of providing health insurance to 16 million new people through the state and federal exchanges, and of guaranteeing coverage for over 160 million by striking the pre-existing condition bar, it very well may become as popular, despite its multiple market-friendly, neoliberal components, as prior social insurance programs like Social Security, Medicare and Medicaid now are. This, along with the taxes levied on high income owners has been, I think, one of the major reasons behind the conservative hatred of the law. The other major one was, despite its origins in and similarities to early 1990s Congressional Republican health care plans and to the state plan Mitt Romney successfully implemented in Massachusetts, the fact that this marked a major legislative victory by President Obama.

One effect of the ruling I noted was that in those states that faced challenges in rolling out local exchanges, shifting to the federal exchange was now a viable option, thereby federalizing the law even more through the back door. Whether this will lead eventually to Medicare-for-all or, even better from a logistical and economic standpoint, a form of single payer health insurance, remains to be seen. But the President was right to point out that as this ruling ratified Obamacare for the near term; it is here to stay, and in the loss, the Republicans dodged a major bullet, since they had no viable, comparable health insurance plan to speak of. Even conservative journalists had begun to question some Republican leaders on this fact. Now they won't have to devise one; it already exists, and is working.

One final thing I'll say is that it struck me that a bit of literary critical study--or even basic reading comprehension--could have led the court to reject this challenge outright. "The state" in common parlance certainly does mean an individual state, as in "the state of New Jersey, like all others in the US, issues drivers' licences." However, "the state" also has the popular meaning of "nation" or "federal entity." It's not just the literary gambit of William Shakespeare writing of"something [being] rotten in the state of Denmark," but regular invocations of "state violence" or "the state's overreach," etc., that point to this other meaning being valid. Thus it strikes me that the Congress's alleged inartfulness was actually quite clever; in those four words, they had already made their case, and all that was needed was careful reading, which Roberts and the five other justices gave the law. Dissenting conservative Associate Justice Scalia disagreed, in spiteful fashion, but what else is new?

***

Black lesbian couple marrying
on beach (BlackEnterprise.com)

Not to be outdone with the Obamacare decision, on LGBTIQ+ Pride Weekend in New York City, the Supreme Court affirmed, in a 5-4 decision in Obergefell v. Hodges and several other linked cases from Kentucky, Michigan, Ohio, and Tennessee, that according to the 14th Amendment of the United States Constitution, same-sex marriage was a federal right for all Americans under the Equal Protection clause. The opinion, written by Associate Justice Anthony Kennedy, cited equal protection and due process, and effectively federalized same-sex marriage, which only 15 years ago existed in one state, Massachusetts. Kennedy's decision, joined by Associate Justices Breyer, Bader Ginsburg,  Kagan, and Sotomayor, was the culmination of decades of work by marriage equality activists and theorists.

As Huffington Post notes:

In the majority opinion, the justices outlined several reasons same-sex marriage should be allowed. They wrote that the right to marriage is an inherent aspect of individual autonomy, since "decisions about marriage are among the most intimate that an individual can make." They also said gay Americans have a right to "intimate association" beyond merely freedom from laws that ban homosexuality. 

Extending the right to marry protects families and "without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser," the justices wrote.

In response to the ruling, each of the judges on the losing side, Chief Justice Roberts Jr., and Associate Justices Alito, Scalia, and Thomas, wrote separate dissents, some of them extreme in their rhetoric. Roberts cited problematic historical precedents; Alito wondered whether people who disagreed with same sex marriage would be discriminated against; Scalia harshly mocked Kennedy's opinion and writing style, while seemingly approving sexual liberationist rhetoric; and Thomas, perhaps most offensively, wondered whether enslaved and interned people did not still maintain their dignity, thereby calling for continued discrimination.

The ruling could have been narrower; Kennedy could have found only for cross-state recognition of marriages performed by a state that had legalized same-sex marriage in ones that had not, but the ruling not only ratified that principle, but also legalization in states that had overtly passed anti-marriage equality statutes. The case's lead plaintiff, Ohioan James Obergefell, had married his late partner of three decades, John Arthur, who passed away 3 months later, and had sought to be listed as Arthur's spouse on his death certificate.

Kennedy's 2003 decision in Lawrence v. Texas, which decriminalized state laws against sodomy--in its same and opposite sexual forms--was an important step in the decade and a half-long process towards marriage equality. Another step came in 2013, when the court struck down the odious 1996 Defense of Marriage (DOMA) law, which the GOP-led Congress had passed and President Bill Clinton had signed into law. The decision also tracked the shift towards public support of same-sex marriage, which currently stands at 60% (Gallup), after having been as low as 44% (vs. 53% against) only a decade ago, and 27% back in 1996 when DOMA passed. A major component of this cultural and political shift has occurred because of younger Americans, who show higher levels of LGBTIQ acceptance than their elders.

Despite the significance of the ruling, numerous challenges for LGBTIQ people remain. First, there is no guarantee--despite the legal ruling that some recalcitrant states will apply the laws as required, without visible or invisible resistance. (State responses to various civil rights laws and rulings offer a precedent.) In addition, a number of the leading GOP candidates have called for resistance to the ruling, and several, such as Mike Huckabee, have called for a Constitutional Amendment to counter the new status quo. Perhaps more importantly, in a majority of states, as NPR noted in April, it is still legal to discriminate against LGBTIQ people, or those thought to fall under this category, in employment, housing, and public accommodations. Surprisingly to me, many people, including many queer people, seem not to grasp this. To put it another way, you can now get married to a person of the same sex in Mississippi, but if you live in a municipality that does not offer civil protections, you can be fired, lose your apartment, and be denied a hotel room! You also may risk losing custody of your children as well.

I should also note that there will be increasing pressure on LGBTIQ peeople to marry and thereby (homo)normalize our relationships, a push counter to the gay liberation ethos of the 1970s and early 1980s, in which LGBTIQ people sought to define ourselves as we saw fit, against and outside the demands of oppressive heteronormativity. Not only will innovative and distinctive forms of domestic arrangement between consenting adults become frowned upon, but legal possibilities such as domestic partnerships and civil unions, which my partner and I have, may also be phased out, forcing LGBTIQ people into the same narrowed options as heterosexuals. While this may be fine for some--many?-- homonormative people it may not fit for all, and while I personally and strongly support the legalization of same-sex marriage and support marriage equality under the law, I also believe consenting adults should not be restrained by such laws in creating relationships that work for them. The question no longer may be whether the state will recognize alternative relationship possibilities, but whether LGBTIQ people will sanction them.