Millennia of Marriage, Part III

Justices Roberts, Kennedy, Ginsburg, Breyer, and Sotomayor
at oral arguments April 28, 2015
photo from here

Did so very much really go on during last week’s SCOTUS oral arguments?

We may not know right away. But possibly the most important case before the Court this year is Obergefell v. Hodges, on the definition of marriage. So we're giving it a careful look.

In two parts we covered Question 1, with Part I looking at the point that for millennia marriage has been fundamentally the joining of a man and woman, including in cultures where there was no animus toward homosexuals, so there are other rational purposes for man-woman marriage.

Part II covered several other points, and the defense. One of the main questions was, what is the justification for changing the definition to include same-sex couples but to then deny other variations? And a big takeaway of the day was that religious people could lose significant freedom to believe in the sacred nature of real marriage, and business people could be coerced to provide services against their beliefs.

In Part III we’re moving on to Question 2. Just as a reminder, here are the two questions, sometimes referred to as the marriage question and the recognition question:

Question 1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Question 2: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

So, Question 2 is asked to consider what happens if Question 1 is answered no; states are not required by the 14^th Amendment to change the definition of marriage to include people of the same sex. In other words, if the states win on question 1, and keep their original definitions, then what? That assumption that the defense has won on Question 1 is important, and the plaintiffs’ counsel had difficulty grasping it.

The first few minutes reveal the basic problem. The plaintiffs’ counsel for this question is Douglas Hallward-Driemeier. (I'll mostly refer to him as counsel, because of the length of that name.) 

MR HALLWARD-DRIEMEIER: A State should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so….

JUSTICE ALITO: I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that's the question in Question 2.

That’s the first reminder of the assumption with this question. Notice that counsel makes the extraordinary claim that non-recognition equals dissolution of a relationship.

MR. HALLWARD-DRIEMEIER: …This Court's decisions establish that there is not only a right to be married, but a right to remain married; that there is a protected liberty interest in the status of one's marriage once it has been established under law.

The justices pretty much ignore that claim and continue dealing with recognition. Justice Scalia compares the question to how polygamy from foreign countries is treated:

JUSTICE SCALIA: Suppose, well, let's say someone gets married in a country that permits polygamy. Does a State have to acknowledge that marriage?

The answer is no. It brings out a good point: we don’t have the institution.

MR. HALLWARD-DRIEMEIER: Well, of course, the State could assert justifications for not doing so, and I think there would be justifications…for not recognizing such….I think that the justification would be that the State doesn't have such an institution….

JUSTICE SCALIA: Well, it would be the same argument. We don't have such an institution. Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out; the State says we only have the institution of heterosexual marriage. We don't have the institution of same-sex marriage.

There’s no refutation. And this is the second reminder that Question 2 assumes Question 1 was settled in favor of the States.

Counsel tries to explain that the difference is a mere change in gender pronouns for same-sex “marriage,” but more involved for polygamy. So Justice Alito offers another possible difference in marriage laws from state-to-state:

JUSTICE ALITO: What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a State would another State be obligated to recognize that marriage?

MR. HALLWARD-DRIEMEIER: I think probably not.

Counsel tries to make the point that, when the state has an interest, it can decline to accept other states’ marriages, but he’s assuming everyone agrees that no such interest precludes same-sex “marriage.”

Justice Sotomayor asks about consanguinity. Most states recognize married cousins, but at least one state does not. And, while that has been historically rare, it doesn’t seem at all against the Constitution for a state to make that choice.

Then counsel gets another reminder (#3).

JUSTICE KENNEDY: But Justice Alito's question points out, the assumption of his hypothetical is, and of the way these cases are presented, is that the State does have a sufficient interest so that you need not allow the marriages in that State. So there is a sufficient interest, under our arguendo assumption here, to say that this is not a fundamental right. But then suddenly, if you're out of State it's different. Why should the State have to yield?

The answer? A state has to have a good enough reason. Counsel mischaracterizes Kentucky’s reason as wanting a higher birthrate, adding, “which I daresay is not a rational justification, much less a sufficiently important one.”

Justice Scalia clarifies Kentucky’s statement, which counsel says is nevertheless reasoning rejected in the Loving case. Which brings another reminder (#4):

JUSTICE SCALIA: But we will not have rejected it if we come out the way this question presented assumes we have come out. …Mainly, saying that it's okay for a State not to permit same-sex marriage.

Counsel tries again, but he’s equating non-recognition to dissolution again, which the justices yet again ignore, and that brings another reminder (#5):

MR. HALLWARD-DRIEMEIER: The State asserts that it has an interest in the stability that marriage provides for children. That interest does not justify extinguishing marriages that already exist.

JUSTICE GINSBURG: May we clear this one thing. If the Petitioner prevails in the first case, then the argument is moot; right?

In an attempt to show that states traditionally accept one another’s marriages, counsel lists five instances in the three states involved in the suit failed to recognize a marriage from out of state that would not have been lawful in those states—including incest, an archaic refusal to allow remarriage after divorce. I think his point is that those reasons are not valid today. He gets another reminder (#6).

CHIEF JUSTICE ROBERTS: Yes. But, again, I think you're avoiding the presumption on which we're starting, on the assumption, which is that the State's policy for refusing to support same-sex marriage is sufficiently strong, that they can, as a matter of public policy, prohibit that in their own State. And yet you're saying it's somehow so much weaker when you're talking about marriages from other States.

Counsel tries to say that the failure to recognize illegal marriages would go against long-standing tradition. But he doesn’t address the elephant-in-the-room question, so Chief Justice Roberts spells that out:

CHIEF JUSTICE ROBERTS: It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State…. Because we live in a very mobile society, and people move all the time….In other words… one State would basically set the policy for the entire nation.

That is the basic reason for asking this question. States saw it coming. They reasserted their state sovereignty by enacting Defense of Marriage laws, and then following up even more strongly places the traditional definition of marriage in their state constitution.

Next comes some discussion, for comparison, of other types of differences in marriage law. This comes to low age of marriage, and whether that would be about consent, or other interests, or how they would be handled case-by-case. And counsel says again that most of the time states accept one another’s marriages. Which brings out some of the twisted logic involved here:

CHIEF JUSTICE ROBERTS: I think your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can't do this; we've never done this before, recognized same-sex marriage. And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States….

Counsel tries claiming that marriage is a fundamental right, and it has to be accepted. That brings on another reminder (#7):

CHIEF JUSTICE ROBERTS: And maybe…I'm just repeating myself, but we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage. So assuming you've lost on that, I don't see how your argument gets--you can't say that they are not treating the marriage as a marriage when they don't have to do that in the first place.

It’s all so unfair, counsel bemoans. He tries to say the cases shouldn’t be decided separately, because you “would forever relegate those marriages to second class status….” Justice Scalia says, “You’re rearguing Question 1 now?” which is almost another reminder, but we won’t count it.

Again, counsel equates non-recognition with dissolution. Again it doesn’t convince.

He thinks he’ll make progress with an actual example from among the plaintiffs:

MR. HALLWARD-DRIEMEIER: Mr. Matthew Mansell and Johno Espejo married in California in 2008. In 2009, they adopted two children. Now, in reliance on the protection that is afforded by marriage, Mr. Espejo was willing to give up his job to give the primary caregiver of their children. Mr. Mansell is the primary breadwinner. His job in an international law firm was transferred from California to Tennessee, and the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together. 

And in support of that, the States offer exactly nothing. There is no reason that the State needs to disregard that marriage. No reason the State needs to destroy the reliance that Mr. Espejo has had in giving up his career to look after their children.

There are several things wrong here. Most obvious should be that, if the relationship is permanent, as the couple claims, there is nothing in Tennessee law that destroys their family relationships. They are not prevented from living together; Mr. Espejo isn't forced to go to work. State law doesn’t prevent companies from offering insurance and other common spousal benefits; an international company probably would not change the insurance after such a transfer. Whatever was arranged for Social Security is unlikely to change, so that is not an issue. Tennessee doesn’t declare they are divorced when they enter the state; it declares nothing, but simply accepts that they are two people living together not recognized as a married couple.

So, what exactly destroys the family arrangement of Mr. Espejo staying home? I think the answer is, they would “feel” less connected if the state of Tennessee doesn’t recognize them. And, more importantly, Tennessee wouldn’t treat them as a married couple when they (inevitably?) divorce. Division of property would be dealt with in civil court, rather than family court.

Justice Scalia responds to the case with another reminder (#8):

JUSTICE SCALIA: It would have been the argument made with respect to the first question.

So, in summary of the plaintiffs'  (pro-same-sex “marriage” side), same-sex couples deserve to be married, even if states aren’t required to allow that (which can’t be an argument on this question), and states shouldn’t be allowed to terminate marriages without good reason (even though non-recognition is not the same as dissolving). It was pretty weak.

Now we get to defense. And here the constitutional question of the “full faith and credit” clause comes up. Justice Scalia brings it up, to get down to business. So, here is Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

The defense counsel for Question 2 is Joseph F. Whalen, who is, I believe, Assistant Solicitor General of the State of Tennessee. As with Question 1, defense counselor is well-prepared.

MR. WHALEN: Your Honor, this Court's cases have made clear that the Court draws a distinction between judgments between States and the laws of each State. And the reason in part that the Court's decisions have said that is that otherwise, each State would be able to essentially legislate for every other State.

So, then, the discussion must clarify definitions of public acts, records, and judicial proceedings, as opposed to laws and other things. For career justices, you think that would be almost automatic.

There’s an amusing discussion about what would happen if a state chose never to acknowledge marriages from other states. They clarify that, if the two states have the same laws, they will recognize, but if they do not agree, a state doesn’t have to recognize. Mr. Whalen references Nevada v. Hall as clarifying the issue. And he explains the underlying principle:

MR. WHALEN: I think the underlying focus is not just that there's a policy, but that there's a legitimate policy. And as this Court's questions earlier indicated, I proceed now on the assumption that the Court has decided the first question in the State's favor, and is determined that, indeed, the State's policy to maintain a traditional man-woman definition of marriage is, indeed, legitimate, and we obviously agree that it is, and the Court should so decide.

In other words, he doesn’t need a reminder about how Question 1 is assumed to be decided, when they come to this question.

JUSTICE GINSBURG: You're making a distinction between judgments--full faith and credit applies to judgments. You can't reject a judgment from a sister State because you find it offensive to your policy, but… full faith and credit has never been interpreted to apply to choice of law.

MR. WHALEN: Yes, Your Honor….And so, in in essence, by deciding whether or not to recognize another State's marriage, the State is deciding whether or not to recognize the other State's law under which that marriage was performed.

That is, in essence, what this question covers. And, the way Mr. Whalen puts it is very convincing; the law uses specific definitions of terms. There is history and precedent in how those terms are used. It’s a relatively simple question.

But Justice Ginsburg doesn’t like the simplicity. She tries to clarify a difference between licensing a marriage and recognizing a marriage.

MR. WHALEN: It goes, Your Honor, to the essence of what I think, in fact, both questions before the Court today get at. And that is that the fundamental notion of what marriage is.

He reminds the Court that the way states have historically recognized marriages from other states cannot be applied here, because the fundamental understanding of what marriage is was essentially the same before, but now marriage laws are not the same.

Mr. Whalen also successfully explains why marriage is more law than judgment:

MR. WHALEN: I think that the performing of a marriage is closer to law is because, in essence, when the marriage is performed, all the rights that flow from that State's laws evolve to that couple. And it's different than judgments and so does not deserve the same kind of treatment that judgments would, under the full faith and credit jurisprudence, because of the reason that this Court has drawn that distinction.

He refers, particularly for Justice Sotomayor (and kudos to him for doing so respectfully) to do some reading up on terminology, to Joseph Story's Commentaries on the Conflict of Laws.

There is a discussion of whether there is some middle ground; could a state not license a same-sex “marriage” but still not be so strongly against it that it can recognize such a thing from another state? A state could, of course, but the point is, it shouldn’t be forced to. Otherwise, people just go out of state to get “married,” and then come back to their state; the state wouldn’t have an enforceable policy.

Mr. Whalen makes a good point about who is doing what:

MR. WHALEN: The difference here, I think, is the landscape that we find ourselves in. Tennessee, Ohio, Kentucky, and other States with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other States have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition. And then to suggest that other States that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the State's ability to self-govern…. It would allow one State initially literally one State, and now, a minority of States, to legislate fundamental State concern about marriage for every other State quite literally. That's an enormous imposition and an intrusion upon the State's ability to decide for itself important public policy questions, and to maintain, particularly when you're talking about recognition.

He gives an example of the type of public policy that would be affected. Parenting, in Tennessee has always been gender based, because of man-woman marriage. A child can’t have two fathers or two mothers, for example. Removing gender terms would affect many aspects of public policy. Why should a state be forced to make such a drastic change, just because some other state chooses to?

If you have read this far, congratulations. This three-part series has probably been longer than anything written on the oral arguments other than the transcript. I’ve gone through this exercise to thoroughly understand, myself. And also to have a good record of what went on, and what it meant.

I don’t know how the Court will rule by the end of June. If they go by the Constitution, the law, the will of the people, and common sense, they will sustain the right of states to define marriage as it always has—a bonding of a man and a woman. But if they listen to the gay mafia, the media pressure, and the whining about “fairness”—that all have no place in ruling on what the law is—then we could lose some significant freedoms. Eventually that could include the ability to write a blog like this without it erroneously being deemed hate speech.

I’m praying particularly for Justice Kennedy. The family, which is the basic unit of civilization, is balanced on the knife edge of his personal understanding of the law. We’re in a precarious place indeed.

Millennia of Marriage, Part I

For those who consider listening to Supreme Court oral arguments a good way to spend an afternoon, Tuesday was particularly good.

This was the day of oral arguments on Obergefell v. Hodges and the consolidated cases related to same-sex “marriage.” As we reviewed recently, [here and here] they covered two questions. The first is whether the 14^th Amendment requires all states to license same-sex “marriages.” The second assumes that question 1 is answered no, and then asked whether all states are required to recognize same-sex “marriages” licensed in any other state.

As I understand it, the way the Supreme Court works is, each justice studies the case individually, reads the briefs associated with the case, and develops an opinion. Quite likely those opinions are fairly well settled by the time of oral arguments.

But that is not to say the arguments are irrelevant. The arguments are intended to give each side the opportunity to voice its strongest points, and also to respond to questions the justices have—which might be intended to either show weakness in the arguments, or bolster those points with added clarity. And court watchers look at the questions and comments from the justices to give some idea about the way they’re leaning.

Our current Court is relatively set on divisive issues—as this is. We have four justices who generally read the Constitution as written and judge based on the written law; and we have four who generally look at cases according to their own personal views and then look for ways to construe those opinions as if they adhered to the Constitution. And then we have one justice, Kennedy, who is unpredictable. That means the future of marriage in the United States rests on the counsels’ ability to persuade one unelected man.

Justice Kennedy during oral arguments April 28, 2015
photo found here

I and others who know the value of real marriage have been justifiably worried about the possible outcome. While there was nothing too definitive on Tuesday, there was an awful lot that gives hope. So it surprised me when I read Wednesday’s Houston Chronicle and they (Adam Liptak of the New York Times wrote the story) seemed to have observed different oral arguments. Their news story ignored what I’m about to cover below, and opined, “On the evidence of his words, he seemed torn about what to do. But Kennedy’s tone was more emotional and emphatic when he made the case for same-sex marriage. That, coupled with his earlier judicial opinions, gave gay rights advocates reason for optimism.”

I’m doing this review to see if there’s something I missed. Buckle up. This will definitely take more than just today’s post.

Question 1

As soon as counsel for the plaintiffs, Mary Bonauto, began her introductory speech, Justice Ginsburg interrupted:

JUSTICE GINSBURG: What do you do with the Windsor case where the court stressed the Federal government's historic deference to States when it comes to matters of domestic relations?

Good question. Because, in Windsor, the Court declared that the federal government could not have a definition of marriage (despite the thousands of places in law where marriage relates to federal law and thus requires a definition) because it had to defer to states, who might have different definitions. OK, so the federal government cannot prescribe a definition because of federalism—separate sovereign states. Yet now they are being asked to force a definition on all states because of the 14^th Amendment equal protection clause.

MS. BONAUTO: And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.

Justice Roberts then pointed out that, according to longstanding definition, these people were not joining the institution, but changing it.

CHIEF JUSTICE ROBERTS: Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.

Ms. Bonauto went on autopilot, repeating the claim that state laws are preventing a class of people from participating in the institution, rather than biology and choices. Justice Roberts made sure she understood:

CHIEF JUSTICE ROBERTS: No. My question is you're not seeking to join the institution; you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.

It wasn’t spelled out, but it was clear to me that there is a difference between preventing a person from marrying because of their belonging to a class (homosexuals) and preventing couples. There is nothing in the law related to sexual orientation (which counsel for the defense did say); homosexuals are not prevented from marrying. But that doesn’t mean they can “marry” someone who does not qualify as being a person of the opposite sex, not married to someone else, not too close a relative, or not of age to consent—the same law that applies to everyone else.

Ms. Bonauto tried to claim that the male-female relationship isn’t fundamental, and that ideas change. I get the feeling she’s not used to being challenged on her talking points. At this juncture, Justice Kennedy stepped in with what is likely to be a quoted point going forward:

JUSTICE KENNEDY: One of the problems is when you think about these cases you think about words or cases, and the word that keeps coming back to me in this case is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it's been it was about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years. And so there's time for the scholars and the commentators and the bar and the public to engage in it. But still, 10 years is I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it's very difficult for the Court to say, oh, well, we know better.

Indeed. If there is a theme for the day, that is it.

Justice Alito brings up the next point, about intent of traditional marriage laws.

JUSTICE ALITO: You argue in your brief that the primary purpose of the Michigan law limiting marriage to a man and a woman was to demean gay people; is that correct?

That is indeed the claim. Therefore, they must prove that the people of Michigan had no other purpose than to demean homosexuals when they enacted the law. That is a high bar, and unreachable.

MS. BONAUTO: The Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society.

JUSTICE ALITO: And did you say in your brief that the primary purpose of that was to demean gay people?

MS. BONAUTO: I think it has that effect, Your Honor. I do. Now, at the same time

JUSTICE ALITO: Is that true just in Michigan or is that true of every other State that has a similar definition of marriage?

She had to admit that maybe not all had the precise intention, but…

MS. BONAUTO: But even if there's not a purpose to demean, I think the common commonality among all of the statutes, whether they were enacted long ago or more recently, is that they encompass moral judgments and stereotypes about gay people. Even if you think about something 100 years ago, gay people were not worthy of the concern of the government and the and and moral judgments about

JUSTICE ALITO: Well, how do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?

I like it when thinking people ask questions that get to the germ of an issue. He’s going to make her prove that, not only the current specific Michigan law exists only to express animus toward a class, but that the antecedents to such laws, the definition used over time and cultures, all were intended to demean homosexuals. She begins to look foolish. She stammers that, “Times can blind.” And, you know, discrimination against women, and blacks, and….

Justice Ginsburg tried to help by muddying the waters with the idea of dominant-subordinate relationships in ancient marriage. Justice Roberts halted that analogy as not useful here. Ms. Bonauto added in questions about mixed-race marriages. Justice Scalia squelched that:

JUSTICE SCALIA: Well, not all societies banned mixed-race marriages. In fact, not even all States in this country banned. But I don't know of any—do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?

He’s continuing his point about her insistence that all these cultures were bigoted:

JUSTICE SCALIA: For millennia, not a single other society until the Netherlands in 2001, and you're telling me they were all—I don't know what.

And then he tries to bring us back to the clarity of the question to be settled:

JUSTICE SCALIA: Well, the issue, of course, is not whether there should be same-sex marriage, but who should decide the point.

I’m pretty sure Justice Sotomayor is pro-same-sex “marriage,” but she's not done with the intent question, and introduces a question on historic discrimination that only strengthens Justice Scalia’s point:

JUSTICE SOTOMAYOR: Now, counselor, in terms of this millennium, what's been the status or the view of gay people in most of those countries? Have they been subject to the kinds of discrimination that they were subject to here? Were they welcomed into the worldwide community? Was it free of discrimination?

Ms. Bonauto says some irrelevant things about whether they had constitutional protections like ours. And then Justice Alito gives a little history lesson:

JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?

He summarizes: they had marriage; they had same-sex relationships that even received a fair amount of cultural approval. But they did not have same-sex marriage. So…

JUSTICE ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?

She seems flustered. And then, surprisingly, it is Justice Breyer (another I would have assumed favored same-sex “marriage”) who nails the point:

JUSTICE BREYER: And to me, it takes the form, the opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don't want to do it to change what you've heard is, change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?

It must be a daunting thing to face the Supreme Court—especially when you’re in the wrong. And not very well prepared for the inevitable questions.

So far we’ve looked at the likelihood that real marriage requires a man and a woman for reasons other than bigotry. We’re still in the middle of question 1 arguments. So coming up next we’ll look at rationale for changing marriage to include same-sex couples, but not include any other changes in the definition.

Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).

Oral Arguments

On Monday evening I heard an interview with Ben Shapiro, at King Street Patriots. He was there to talk about his new book, Prime Time Propaganda, but he also happens to write about the Obamacare issue for Breitbart.com, so he spent a little time on that as well. He gave a good summary of what’s going on this week, sort of your armchair guide to the proceedings.

Shapiro said there are three main issues, one per day (there are also a couple of additional issues, if you read news elsewhere about it):

1.      Timing and ripeness—Monday

2.      Individual mandate

3.      Severability

One point Shapiro made was that oral arguments are pretty much a formality. Most of the justices have already researched and decided their positions—and have for the most part already written their opinions. It is expected that the four conservative members of the court will find the law unconstitutional, and the four most liberal members will find a way to claim it can stand. The unpredictable deciding vote is Anthony Kennedy. He tends to frame his opinions, however, based on his view of personal liberty. He decided Lawrence v. Texas, for example, on his opinion that a state couldn’t have an anti-sodomy law since a sexual act is a private decision (ignoring anti-prostitution laws, anti-bigamy laws, anti-child molestation laws, and a myriad other concerns in so opining). So maybe concerning Obamacare he will be hesitant to force individuals to buy a product.

Timing has to do with the question of whether the issue can be taken up now, even though the penalties don’t kick in for a couple more years. If there’s a tax injury question, the person suing can’t sue until after suffering injury from the tax. Thus the question couldn’t come up until after 2014. The Obama administration sold Obamacare as something other than a tax; it is a penalty forcing compliance, not a revenue source for the general fund. But now the lawyers are claiming it is a tax—so they can put off the question until after the election. But on Monday no one was buying that argument. It can’t be a tax and not a tax at the same time. Really the issue for the justices is whether or not they want to postpone a ruling or handle it now. They all seem ready to take it on, with the exception of Kennedy, who would probably be glad to procrastinate. But on that issue the vote would likely be 8-1.

Tuesday the big issue was the individual mandate. Questions asked by the justices reveal something of their opinions. And it looked very bad for the pro-Obamacare crowd. Government lawyers seemed surprisingly unprepared to answer the basic question at the heart of the issue: can government force a person to participate in commerce they would otherwise not choose so that government can regulate that commerce? The deer-in-the-headlights response made it look like they’d never considered the question, which isn’t possible. But it does reveal how unanswerable the question is for them. And the follow-up core question is, if government can force a person to buy a product they would not otherwise purchase simply because there is the power to regulate commerce, what can government not force a person to do? There were analogies galore: can government force a person to buy broccoli? Since everyone will die, can government force a person to purchase burial insurance? Since anyone might at some point need to make a 911 call, can everyone be forced to purchase a cell phone plan?

Near the end of the day, Kennedy gave a tiny spark of hope. The government argument was that young healthy people not participating in the health insurance market did possibly have an effect on the costs of the market. Actuarially that is true: if young healthy people don’t put themselves into the insurance pool, then the pool is made up of individuals more likely to make claims, and therefore the costs overall are higher. If those young healthy people who won’t be making many claims can be forced to pay for full coverage, the costs overall go down—because those young people are subsidizing the less healthy. Those young people without coverage, if they can afford it, would likely opt for catastrophic coverage only—and pay out of pocket for their fewer basic medical needs. But Obamacare prohibits them from having the option of buying catastrophic coverage; it forces them to buy full coverage. The mandate is intended to force healthy people to buy a product they do not want so that the government can say it is lowering costs for unhealthy people.

You might see it as enslaving the lower-earning youthful demographic to pay for the healthcare costs of those who have saved up enough to retire.

Anyway, Tuesday did appear to be disastrous for supporters of the individual mandate. I hope that proves true.

Wednesday is about severability—assuming the mandate is struck down, does that mean the whole bill is struck down, or can the mandate be removed with the rest left standing. This is probably the biggest question. Technically, there is no severability clause written into the bill as required; the bill was written intentionally to have the mandate be the means of making the rest of the bill possible. If the mandate falls, the whole bill falls. But, after arguing the other way to get the bill passed, the government is now arguing that even without the mandate, the rest of the bill should stand.

There are economic and plenty of other reasons this is wrong. But the Supreme Court as a whole isn’t about simply looking at the law and the Constitution; it’s about deciding what they and/or the people want and then crafting a slant toward that end. In this case the likely reason the mandate will be struck down is that a majority of the people are strongly against it and believe it is unconstitutional (this has been true since before passage and continues true even after two years, even before the pain of payment has kicked in). So I think it’s likely the mandate will be struck down. But then this severability question becomes the sticking point. The liberals on the court ask things like, shouldn’t we let Congress decide these things? (even though, clearly, that was a bad idea in the first place—particularly when it was totally partisan and required bribes and shenanigans even to get that single party to pass it).

Shapiro pointed out that deciding to leave the rest of the bill standing minus the mandate could be the worst possible outcome: insurance companies would be forced to insure the highest risk individuals (can’t turn anyone down) but have no way to force healthy individuals into the pool to mitigate their costs. Insurance companies would go bankrupt. And that would mean the only option left standing would be government healthcare—or socialized medicine. Costs would be higher. Care would be less. Choices would be limited. All our fears would be realized.

So let’s hope the court (particularly the unpredictable Justice Kennedy) can see the facts and rule justly.

And if for some reason that doesn’t happen, we must, absolutely must, vote Obama out of office before this catastrophe gets institutionalized.