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?

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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.

Obama Again Supports Marriage Equality + NC Again Denies Equal Rights + Garry Wills on the Myth of Marriage

A busy week, with a big deadline, so these posts will be brief.

I was very glad to see President Barack Obama cease his seesawing and finally (once again) back marriage equality, i.e., same-sex marriage yesterday morning in his conversation with Good Morning America's Robin Roberts. Ever the politician, he qualified it by noting his avowal was only his personal belief and not a policy statement for his administration. He also made no larger or broader statements about the gross inequality that now exists between states that permit same-sex marriage and those, like North Carolina, that have now doubled down on banning it. (It was already outlawed in the Tarheel State; the new law also cancels out civil unions and domestic partnerships.) Popular opinion, however, trends on towards greater acceptance of same-sex marriage, and it eventually will exceed 75% or more, in my lifetime, I believe, which is an amazing thing to consider. And as I said, Barack Obama in a sense is coming home. In 1996, when he ran for the Illinois State Senate he supported same-sex marriage. To become US Senate from Illinois, however, he began his backwards shimmy, and has been dancing around ever since. Until yesterday.

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As I noted above, Amendment One, banning same-sex marriage and stripping away even more equal rights, passed in North Carolina, 61% to 39%, on Tuesday. I'm not surprised this occurred; civil rights should never be put up to a vote, and while North Carolina is not and has never been the most conservative Southern state by any measure--and even during the US Civil War nearly sided with the Union--it is still not so progressive that Amendment One would have been defeated. I particularly feel for all the North Carolinians who now face having their government-sanctioned relationships voided, because of a bigoted majority.  One question I have for the Democratic Party, which has chosen to hold its presidential convention in Charlotte later this year: why?  North Carolina's recent history with unionized labor was bad enough, but it adds insult to injury--to use that cliché--to hold the event there now.  I'm sure there are other cities that could swing into gear; the Democrats should consider Buffalo, or Cleveland, or return to Denver. Anything but Charlotte, which admittedly provided many votes against the heinous Amendment.  But still...Democrats: Pittsburgh, maybe?

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A footnote: the eminent historian and my colleague, Garry Wills, with a brief, historically informed commentary, "The Myth of Marriage," on the New York Review of Books' blog.

A quote:

Those who do not want to let gay partners have the sacredness of sacramental marriage are relying on a Scholastic fiction of the thirteenth century to play with people’s lives, as the church has done ever since the time of Aquinas. The myth of the sacrament should not let people deprive gays of the right to natural marriage, whether blessed by Yahweh or not. They surely do not need—since no one does—the blessing of Saint Thomas.

Same Sex Marriage Begins in NY + Amy Winehouse RIP + Norway's Right-Wing Terrorist

Siegal and Kopelov,
Jason DeCrow/AP

Same-sex marriages have begun in New York State, and New York's governor, Andrew Cuomo, has even proclaimed July 24 the Day to Commemorate Marriage Equality. Kitty Lambert and Cheryle Rudd were the first same-sex couple married in the state, shortly after midnight at Niagara Falls' State Park's Luna Island, the picturesque falls behind them. New York City's orderly process added the newest entrants to the marriage rolls, beginning with Phyllis Siegal and Connie Kopelov, together for 23 years, who exchanged vows at 9 am at the City Clerk's Office.

Last month New York became the sixth and largest state, alongside Massachusetts, New Hampshire, Connecticut, Iowa, and Vermont, as well as the District of Columbia, to legalize same-sex marriage; Hawaii, Illinois, Delaware, and New Jersey offer civil unions. California's Supreme Court also legalized same-sex marriage in 2008 before it was invalidated by Proposition 8 in November of that year, while Maine's May 2009 legalization of same-sex marriage by its legislature was overturned by referendum in November of that year. On Tuesday, President Barack Obama announced support for a bill to repeal the Defense of Marriage Act (DOMA), passed by a Republican Congress and signed by President Bill Clinton in 1996. DOMA negates federal recognition of same-sex marriage, and allows any state to deny recognition of same-sex marriages performed in another state.  With a Republican-held House, it stands no chance of passing, but if the Democrats can regain the House and retain the Senate, a dicey prospect at best, I see President Obama signing this bill into law.

I predict that in 15 years, nearly all the northeastern and Pacific coast states, much of the upper Midwest, and perhaps Florida and Colorado will have legalized same-sex marriage, but that the South will be the country's last holdouts.

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Amy Winehouse onstage
during 46664 Concert In
Celebration Of Nelson
Mandela's Life, Hyde
Park 2008
Gareth Davies/Getty

British soul singer Amy Winehouse (1983-2011), who won 5 Grammys for her second album, 2006's Back to Black, was found dead yesterday in her north London home. Lord but could this young British contralto sing! Perhaps best known for her ironic and portentous hit "Rehab," in which she telegraphed her attitude concerning her loved ones' attempts to help her, Winehouse also climbed the UK and US charts with singles like "You Know I'm No Good" and "Back to Black," and became the first British artist to win five Grammy awards, including for Best New Artist, Record of the Year and Song of the Year.  I particularly love "Tears Dry On Their Own," another of her unsentimental, prescient gems on the album.

Winehouse had struggled with eating disorders and substance abuse and addiction for years.  In August 2007 she was hospitalized for a drug overdose, and at the end of the year, she was captured on camera smoking crack cocaine and talking of further drug use. In 2009, she returned to rehab for drug-related problems. Through often dazzling in her televised performances, had been hit or miss on tours, including her 2007 British 17-date affair, during which she was booed and suffered walkouts in Birmingham because of her incoherence and vehemence towards the audience. In June Winehouse canceled her comeback tour after a disastrous, shambling performance Belgrade, Serbia, which was captured on tape by angry and shocked concertgoers.

Winehouse leaves her parents, Janis and Mitch Winehouse, the latter a musician who'd released a jazz album of his own, and was about to perform in his first date in the US, in New York, as well as fans worldwide who mourn her untimely passing. RIP.

New York State Senate Passes Marriage Equality Bill!

Photo: James Keivom/News

It's official, and on Gay Pride Weekend, no less!

New York State's Senate has just passed the marriage equality bill 33-29, ratifying the earlier affirmative New York State Assembly vote, and now it awaits Governor Andrew Cuomo's promised signature, which will make New York the sixth (joining Iowa, Vermont, Massachusetts, Connecticut, New Hampshire, and the District of Columbia), and by far the largest state by population, and by gay population, to legalize same-sex marriage. New York, the site of the 1969 Stonewall Inn Riots, also becomes the first state to pass a same-sex marriage bill through a legislature with differing parties controlling the two houses.

Cuomo had championed the cause of marriage equality from his campaign forward, even presenting an earlier version of the bill to the legislature, and repeatedly urged legislators of both parties to sign it.  He also directed a top aide to coordinate the efforts of a number of state gay-rights organizations and helped to lead a TV and radio campaign on its behalf. The logjam remained in the Senate, which flipped from tenuous Democratic control in 2010. Although 29 of the 30 Senate Democrats (including all the African Americans and all but one Latino legislator) signaled support, only 2 Republicans were officially on board. Then tonight, after the Senate President Dean Skelos (R-Long Island) finally brought the bill up for a vote, two more Republicans, Stephen M. Saland (R-Poughkeepsie) and Mark Grisanti (R-Buffalo), who had run against same-sex marriage in his campaign last year, shifted from on the fence to yes, and that was it.  A religious institutions exceptions amendment, sought by Republicans, passed 36-26.  Once Governor Cuomo signs the legislation, same-sex couples will be able to marry in 30 days.

Now, 44 more states to go, including both New Jersey and Illinois, the two states in which I spend most of my waking life. Just as important, many more states also need civil protections for LGBTQ people. The struggles continue, but what a major historic victory tonight for New Yorkers and all Americans!

UPDATE: Governor Cuomo has signed the legislation, so same-sex marriage is now official legal in New York State!

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Here's another perspective, by Columbia University professor Katherine Franke, suggesting that we should not foreclose other partnership possibilities, even as she champions the necessity of equality under the law.

End of Quarter + DC Marriage Equality a Reality

Is it true that 9 weeks have passed since January 4, 2010? They must have, because the undergraduate quarter is over on Friday; next week is Reading Week, and exams and final papers and projects follow one week later.  Today was the final meeting of the "Situation of Writing" class, and I must say that I'll really miss the students in that class. Today we concluded our discussion by discussing articles on MFA programs by Menand, Delaney, and Greif; on Rick Moody's Twitter short story, the e-book truce between Amazon and the publishers, and on the old vision of hypertexts vs. new(er) ones; and on Rebecca Mead's New Yorker article on the twin Dickman poets (yes, that's their last name). We also momentarily touched upon graphomania and Alice Flaherty's The Midnight Disease, which I'll have to give more time next time, just as I think I ought to return to Pascale Casanova's The World Republic of Letters (other than Moretti's book on global literature, is there anything out there that's comparable and not weighted down by leaden theory?). There were a good many other things to discuss that we didn't have an opportunity to (though we ran the table on the syllabus!), but as I told them today, I felt like I learned a great deal from them, as I always do. We also had the final quarter meeting of the novella class, and they turn in the opening 10 pages tomorrow, but I'll be seeing them in all the old familiar places next quarter (the semester continues), so this isn't an ending, but a brief hiatus. My final class meeting is next Wednesday; I really enjoy these graduate writers, so it'll be hard to say goodbye to them as well.  After 7 years, I'm still not used to the speed with which a quarter zooms by; on the one hand, we always get a lot done in a short period of time, but on the other, I always feel like it's just too short.

>>>

If you'd told me 10 or 5 or even 2 years ago that Washington, DC would allow same-sex marriage before New York City or State, New Jersey, or even states like Illinois and Washington State, I'd have said you need a wakeup call. But, the unbelievable is now, wonderfully, reality: in the nation's capital, marriage equality is a reality!  At DC's Superior Court, 151 couples lined up for marriage licences today. It's taken many years of struggle but this dream is now a reality, and, as I've said, it--legal equality--will eventually be the law of the land. But for today, let's celebrate this good news from DC!

Rocky Galloway and Reggie Stanley (from Rod 2.0 [http://bit.ly/cQNvY4])

Iowa's Big Day + Barackatude + Cards On Roll + Davis on Swine Flu Blues

Congratulations to Iowa and all the Iowans set to join in long-term union on this history day! Next up, Vermont!

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We're approaching the 100th day of President Barack Obama's tenure, which sometimes feels to me like 10 days and others like 1,000. On such latter days, I have to remind myself how fanciful his election seemed two years ago this time, and how tense things were at times throughout much of 2008, when the W Gang were still in office and the GOP really brought the crazy with the McCain-Palin ticket. (I also realize on such days that having had him as one of my almost-Senators for 4 years, I got very used to thinking of him in office, though serving in the US Senate is of a different order than being President of the United States.) I intend to write a brief titled "One Hundreds Days of Obamatude" soon, once I'm out of the new thicket of university tasks, he's been as good a leader as I imagined, in some cases far better (signing the Ledbetter law and the stem cell ban right away, appointing some true progressives like Hilda Solís, Harold Koh, and Dawn Johnsen, the Cuba overtures), and in a few far worse (that horrid financial team of his, the continuing drone attacks in Pakistan, the coddling of the Bush Crime Syndicate's state secret claims and treatment of prisoners). But on balance, he's been quite good. I was expecting a more liberal Clinton 2.0 or Eisenhower, but we're much closer to FDR+, which what we desperately need right now.

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I didn't believe it was possible, but the St. Louis Cardinals are in first place in the National League Central and are tied for the best record in the NL with a 14-6 showing so far. Although they always have a trump card in future Hall of Fame first baseman Albert Pujols (at right, AP), they did little over the winter to boost the team compared to a number of other squads in both the AL and NL. Yet so far, despite the loss of their best pitcher, Chris Carpenter, to an oblique strain/tear, they have cobbled together decent performances from their starters, especially Joel Pineiro (now 5-0 as of tonight), and decreased bullpen meltdowns, while the heavily farm-team stocked lineup has provided enough runs to put them ahead. They even ran the board with 9 straight at home just recently, including 3 straight over the New York Mets. One pressing weakness is the high number of errors so far: they have 20 errors in 20 games, a rate they'll have to lower if they want to stay in the lead. Pujols, sterling in every other regard, with 7 home runs, 20 runs (for 1000 in his career), and 25 runs batted in thus far, has made 4 all by himself. In the rest of the league, only the Los Angeles Dodgers are having a breakout year so far. The project NL leaders, including last year's World Series winner Philadelphia, the Mets, the Cubs, and the hot-for-a-minute Florida Marlins, have played middling ball at best. Can the Cardinals sustain their success? I for one hope so.

Pujols after hitting his grand slam against the Chicago Cubs, Sunday, April 25, 2009

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Here's another take on the swine flu epidemic, by Mike Davis in the Guardian Online. He lays the blame for what we're facing at several different doorsteps, including that of the industrial food complex--the industrial pig farming industry in particular--Big Pharma, and wealthy nations that seek to erect a pharmacological and public health moat around themselves. As the last few weeks have shown, pathogens can travel as easily as human beings, across every possible border. (Why am I sneezing as I type this?) But neoliberal ideology is also under indictment here. After you read the following quote (and the article, I hope), ask yourself, have you heard any of the people on TV or in our papers of record here advancing any of the discussion that Davis is broaching here?

But what caused this acceleration of swine flu evolution? Virologists have long believed that the intensive agricultural system of southern China is the principal engine of influenza mutation: both seasonal "drift" and episodic genomic "shift". But the corporate industrialisation of livestock production has broken China's natural monopoly on influenza evolution. Animal husbandry in recent decades has been transformed into something that more closely resembles the petrochemical industry than the happy family farm depicted in school readers.

In 1965, for instance, there were 53m US hogs on more than 1m farms; today, 65m hogs are concentrated in 65,000 facilities. This has been a transition from old-fashioned pig pens to vast excremental hells, containing tens of thousands of animals with weakened immune systems suffocating in heat and manure while exchanging pathogens at blinding velocity with their fellow inmates.

Last year a commission convened by the Pew Research Center issued a report on "industrial farm animal production" that underscored the acute danger that "the continual cycling of viruses … in large herds or flocks [will] increase opportunities for the generation of novel virus through mutation or recombinant events that could result in more efficient human to human transmission." The commission also warned that promiscuous antibiotic use in hog factories (cheaper than humane environments) was sponsoring the rise of resistant staph infections, while sewage spills were producing outbreaks of E coli and pfiesteria (the protozoan that has killed 1bn fish in Carolina estuaries and made ill dozens of fishermen). [H/t to my cousin, Lowell Denny]

End of Quarter Finally + California Same-Sex Marriages Begin

Well, I am finally done. The students' grades are all in, undergraduate and graduate, and the school year is over!

For my brutal lecture course, I want to give special and sustained thanks to Brietta, Patricia, Sarah, Wana, and Wendy, my wonderful TAs, whose brilliance, insight and diligence I cannot say enough about. And to all the students, thank you for a great quarter.

Here are some of them in the lecture hall, taking their final exam.



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It's official, extraordinary and still somewhat unbelievable to me. Whatever you feel about marriage as an institution (I personally have always been somewhat of a skeptic), California has taken a huge step in terms of equality under the law. This evening, the Golden State will begin issuing marriage licences to same-sex couples, and legally permit same-sex weddings to occur. (At right, from the New York Times: Del Martin, seated, and Phyllis Lyon were the first same-sex couple in San Francisco to exchange wedding vows on Monday. Mayor Gavin Newsom, left, presided; Jim Wilson/The New York Times).

I knew this day was coming, and I figured that California would be on the leading edge, but I didn't know it would happen so swiftly, especially after Republican Governor Arnold Schwarzenegger (twice?) declined to sign bills permitting gay marriage passed by the California legislature. The marriages still face the threat of an anti-same sex marriage referendum, which will be voted on this upcoming November, I believe, but the most recent opinion polls I've seen appear to show a majority support same-sex marriages being legal.

With New York's governor David Paterson announcing that he wants the state to follow legal rulings and recognize same-sex marriages, and with California allowing marriages of out-of-state same-sex couples, how much longer will it be before other states beyond Massachusetts recognize these couples or change their own laws? What will the next states to take this step be? I predict that of the non-civil union states, Rhode Island will be among the first; of the civil union states, Vermont and New Jersey, where I believe a challenge to the legality of not allowing same-sex marriages is still wending its way through the courts. And which states that have barred same-sex marriages will be among the first to repeal those laws?