Monday, June 29, 2015

Of Courting and Marriage

To no one's surprise, the Supreme Court declared that a somewhat archaic eighteenth-century document and one of its somewhat archaic nineteenth-century amendments granted the right of same sex couples to marry. 

It just took us a couple of hundred years to learn it.

The Supreme Court ruled by a 5-4 majority in Obergefell vs. Hodges that the United States Constitution requires that states issue marriage licenses to same sex couples.

You can read the complete majority opinion of and the dissenting opinions here.

The decision was no surprise to any one after the Supreme Court ruling against the Defense of Marriage Act. Everyone knew where the court would come down on the question of same sex marriage and knew who would write the majority opinion--Justice Anthony Kennedy. He showed his hand so to speak in his intemperate comments regarding those who supported DOMA--in his words a "bare congressional desire to harm a politically unpopular group." He basically labeled President Barack Obama, Vice-President Biden, former President Clinton, the future presidential candidate Hillary Clinton, 342 United States Representatives and 85 Senators BIGOTS.

The legal basis of the decision rests upon the 14th amendment,  That amendment sought to protect the former slaves from legal disabilities imposed by states that might jeopardize their newly won freedom. Congress was especially concerned about blacks who traveled or moved out of their home state. In the decades before the civil war, many states refused to allow free blacks to enter their jurisdictions. Others required that free blacks post bond while traveling through the state for work or if they desired to live in the state. 

In fact, the 14th amendment actually echoes the provisions of Article IV of America's first constitution, the Articles of Confederation:

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."

The 14th Amendment simply intended to extend these basic privileges and immunities to black citizens. The 14th Amendment had nothing to say about equal rights for blacks, women, homosexuals, or anybody else for that matter.

Although the history, circumstances, and limitations behind the passage of the 14th amendment are well known, Justice Kennedy wrote this fanciful characterization: 

"The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed"

Justice Kennedy offered no evidence in his opinion for this claim. And there is good reason why he did not. 

There is no evidence.

The citizens of this country apparently lacked the "learning" about freedom and the "new insight" to which Kennedy alluded. This is why citizens consistently rejected attempts by state legislatures and state courts to expand marriage laws to includes same sex couples.

Kennedy wants to be our teacher.

That vacuous passage is about the extent of Kennedy's allusions to the Constitution. As in most Supreme Court opinions, Kennedy devoted most of the text to discussion of  Supreme Court's jurisprudence on the issues of marriage, privacy, homosexuality, liberty, and equality. That is the problem with our judiciary. As the courts build precedent upon precedent, their jurisprudential edifice moves ever more distant from the Constitution and the historical context, intents, and actual words of its provisions.

In his majority opinion, Justice Kennedy also wrote passionately about the special nature of marriage and the desire of same sex couples to live together in its bond. He retold the stories of the plaintiffs and the hardships they faced because state laws prevented them from enjoying the marriage bond. Kennedy shares the assumption of same sex marriage advocates that the lack of recognition of same sex marriage "stigmatizes" them. Because marriage laws remain some of the last remaining laws that distinguish people based upon their sexual orientation, Kennedy and other advocates of same sex marriage believe that removal of these marriage laws will result in the removal of this stigma.

Kennedy's sociology appears to be no better than his history. The lack of same sex marriage rights is not what stigmatizes same sex couples. Homosexuality itself is the stigma. For all of recorded history, even before the rise of the monotheistic religions notorious for their hostility to homosexuality and in cultures far removed from the influence of those religions, homosexuals have been whispered about, sneered at, mocked, physically abused, and even killed. Even 20th century communist regimes, officially atheist,  condemned homosexuality as "bourgeois egotism" and suspected homosexuals of serving as agents of "counter-revolutionary imperialism."  And the lack of "marriage equality" had nothing to do with it.

Contemporary Americans exhibit much more toleration (at least publicly) that previous generations. The fact remains, however, that large numbers of Americans believe that homosexuality is a sin, a biological anomaly, unnatural,  or, in the words of those following their feelings rather than any thoughtful consideration of the issue--"just plain weird." And for these and a host of other reasons and feelings remain cool to the idea of same sex marriage.

Kennedy and other advocates of same sex marriage exhibit an incredible amount of naivete in believing that simply a change in the law will transform hearts and minds.

And because the way the law was changed, not by deliberation of citizens but  by judicial fiat, it actually may make things worse. Doubters should simply reflect on the way that the Supreme Court's decision in Roe vs. Wade transformed a civil and even conservative approach to reform of abortion laws into a "culture war."

Below, another legendary constitutional scholar who opposed same sex marriage on religious and constitutional grounds:

Friday, June 26, 2015


As expected, the United States Supreme Court rejected the most recent legal challenge to the Patient Protection and Affordable Care Act.

Commonly known as Obamacare, Romneycare, and now via Antonin Scalia, SCOTUS-care, the law faced its most recent challenge on the grounds the the IRS and the Obama administration violated their own law by providing subsidies to those who purchased health insurance in market exchanges set up the federal government.

The law explicitly restricts subsidies to those Americans who purchase insurance through "exchanges established by the states." The subsidies served as a financial incentive for the states to set up exchanges. Witness for the plaintiffs--Obamacare architect Jonathan Gruber.

 Moreover, Senator Max Baucus, Democratic chairman of the Senate Judiciary Committee, who shepherded the PPACA through Congress, also affirmed that the bill restricted subsidies to exchanges set up by the states.

Because so many states refused to set up exchanges for their citizens to purchase insurance, the federal government set up its own. Then, in violation of its own law, the Obama administration began subsidizing the insurance premiums of those who purchased coverage in the federal exchange.

The court ruled, however, that "exchanges established by the states really means "exchanges established by the states and the federal government."

The Supreme Court justified their decision based upon the intent of Congress. According to John Roberts,

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

Moreover, "Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid."

Roberts and his fellow justices completely misconstrued the intent of Congress. Of course Congress intended the insurance markets to work. The purpose of subsidies was to force the states to set up exchanges by means of the promise of federal dollars. The "calamitous" death spiral is what happens when the intention of Congress fails--something that no one anticipated. Contrary to everyone's expectation, many states refused to set up health insurance market exchanges.  Once the Obama administration recognized what was happening, they intervened in violation of their own law. They set up their own exchanges and then subsidized the insurance premiums of those who purchased insurance in those federal exchanges. 

Concluding the the majority of justices simply have decided to protect the PPACT at any cost, including the integrity of law itself, Antonin Scalia dubbed the law SCOTUS-care.

Saturday, June 20, 2015

Conservatism and The Confederate Flag

In a short break from the series of posts on Conservatism. . .

The vile and disgusting murder of nine church members by Dylann Roof has spawned a number of so-called "national conversations"--you know-- the ones in which everyone engages in a monologue of ideological sound bites instead of a dialogue that seriously explores alternative views. One of the latest involves revisiting the Confederate battle flag.

Here is my monologue.

Most black Americans see the flag as a symbol of hate. The battle flag originated in the American Civil War. That contest began, of course, when Southern states seceded from the Union to protect slavery from interference by a new political party that had captured control of the White House and both houses of Congress--the Republican Party.

Southerners resurrected the flag in the 1950s in reaction to the Brown vs. Board of Education decision by the Supreme Court that ruled segregated schools violated the United States Constitution and the subsequent efforts of the federal government to enforce that decision. The flag was incorporated into the state flags of many Southern states during this time period by Democratic governors and Democratic controlled state legislatures. It seems no one cared about the issue until Republicans began winning control of state governments. Then the Confederate flag became a controversy.

It doesn't take much empathy for one's fellow citizens to see why black Americans take offense at the display of that flag.

For many white Americans, the flag is a symbol Southern pride or Southern culture.

That's the wonderful thing about symbols: its all inside the head. (One witnesses the same fantasy when people burn the American flag over something is symbolizes in their imagination.)

There is one incontrovertible  fact, however, about what the battle flag symbolizes.

As the Confederate battle flag, it served as the banner under which Southern armies fought in their attempt to break up the United States over the election of the Republican Party in  1860.

That ought to be grounds enough for any self-respecting Republican to oppose the display of that flag in any official capacity that represents a state government. And Republicans need to point out who hoisted the flag in the first place--the Democrats.

When running for president, Barack Obama said that the Confederate flag should be confined to a museum.

That's right Mr. President. Put it in a museum dedicated to the rich history of the Democratic Party.

Don't be confused:

Confederate Battle Flag

First CSA national flag: Stars and Bars