Gay Marriage, Obamacare, and the Moral Implications of other Recent Supreme Court Decisions

by Benjamin Studebaker

The Supreme Court has recently issued a slew of interesting and important decisions, and I want to make a point to talk about them, their consequences, and the merits of the arguments and judicial philosophies to which the various justices appealed.

There are three cases in particular that I’d like to say something about:

  1. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.
  2. King v. Burwell
  3. Obergefell v. Hodges

Let’s take each in turn

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.

In this case, Texas distributed tax credits for low-income housing in such a way that all new low income housing was built in racially segregated, low income areas. Inclusive Communities claimed that Texas was acting in violation of the Fair Housing Act of 1968, a major piece of President Lyndon Johnson’s extensive civil rights legacy. The act prohibits discrimination on the basis of race, color, religion, or national origin in the terms, conditions, or privilege of the sale or rental of a dwelling. Texas claimed that because its policy did not deliberately intend a segregated result, it was not discriminatory. The court ruled that Texas’ policy is discriminatory because of a legal doctrine called “disparate impact”. Disparate impact holds if there is a disproportionate impact on some group and that impact cannot be justified on business grounds, an action is discriminatory even if it was never deliberately intended as such.

The ruling was 5-4. Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan supported the ruling, while Alito, Thomas, Roberts, and Scalia dissented.

This was a good decision. It supports the important moral principle that an act’s consequences are more important than the intentions of the actor. If I hit you with my car, your injuries are just as serious regardless of whether or not I hit you deliberately. Depending on whether or not you believe in free will, you can argue that if I was deliberate, I might be more blameworthy, but this has nothing to do with the size of the harm that has been done to you. If I hit you on accident, it would not make your injuries irrelevant–once made aware of your injuries, I (or my insurance) would be morally obliged to rectify your injury insofar as this is possible and take any available reasonable action to ensure that I would be less likely to commit such an error in future. Discriminatory housing outcomes tangibly harm the material interests of those discriminated against. Those living in poorer areas are subjected to public services with weaker local funding, resulting in inferior outcomes and reduced opportunities not merely for themselves but particularly for their children. This ruling may help empower more people forced to live in poor neighborhoods by government housing policies to challenge those policies, and this is a very good thing for the nation’s poor and marginalized.

King v. Burwell

King challenged the meaning of a pivotal phrase in the Affordable Care Act (Obamacare), which reads as follows:

In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.

(2) (a) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act

The relevant phrase is “established by the State”. King claimed that this means that subsidies are only available for exchanges established by US states governments (e.g. Massachusetts, California, etc.), and that therefore patients enrolling in the federal exchanges should be denied subsidies. It’s estimated that if King’s interpretation were to stand, 6.4 to 8.2 million people would lose their health insurance coverage, and premiums would rise by as much as 35%. This would do catastrophic harm to these people.

It’s also worth pointing out that, as any undergraduate political science student can tell you, “State” does not necessarily mean “US state”. Indeed, in the academic literature this is not even its most common usage. Far more often than not in political science, the term “state” refers to something like this:

a politically organized body of people usually occupying a definite territory; especially:  one that is sovereign

On this definition, a US state does not even qualify as a state. France is a state, Russia is a state, but Alabama is merely a US state–from a political science standpoint, it’s much more similar to a province than it is a sovereign state. Alabama does not have sovereignty–sovereignty requires supreme power over a territory and its people, and Alabama’s power is not supreme.

So when the court reads the word “state”, it is free to decide whether to understand that word to mean “US state” or “sovereign state” or even both at once. Given that one understanding does immense harm to millions of people and the other does not, this case should not have even made it to the court.

Nevertheless, it did, and while the court did reject King’s claim, it only did so by a 6-3 margin. Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan ruled in favor. Scalia, Thomas, and Alito dissented.

Obergefell v. Hodges

In this case, John Arthur and James Obergefell got married in Maryland. They moved to Ohio, and while they were in Ohio, Arthur became terminally ill. Arthur wanted his death certificate to name Obergefell as his surviving spouse, but Ohio declined to do this because Ohio had a ban against gay marriage. Obergefell claimed that the 14th Amendment required Ohio to recognize his Maryland marriage. He appealed to the Equal Protection Clause, which reads as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Obergefell argued that by restricting marriage to men and women, the states were denying gays and lesbians equal protection.

Allowing consenting adults of the same gender to marry does not substantively harm anyone’s interests–it merely grants substantive benefits to those adults. Any act that harms no one and benefits some people is good, and any act that benefits no one and harms some people is bad. For these reasons, legalizing gay marriage is good while prohibiting it is bad. The distinction the law was drawing between straight marriages and gay marriages was an arbitrary distinction–its observance benefited no one and needlessly denied equal standing to some.

I’ve been supporting marriage equality since I became aware of this issue, when I was 11. That was in 2003. Most of the other kids at my middle school did not agree, and I was frequently accused of being gay because, according to them, “only a gay person would support gay marriage”. Today many of those same people have turned their Facebook profile pictures into rainbow flags. As much as I may bemoan the reactionary economic direction my country is heading in, it remains possible to make significant progress on social issues because the arguments are often very intuitive and the progressive policies don’t cost much money. I was very happy to see the court rule that the 14th amendment protects same-sex marriage nationwide.

I was less happy that the ruling was 5-4. As in the housing discrimination case, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan supported the ruling, while Alito, Thomas, Roberts, and Scalia dissented.

In all three of these cases, Alito, Thomas, and Scalia were on the wrong side, and Roberts was on the wrong side in two out of three. Why are the same justices consistently opposing rulings that do so much good and prevent so much harm?

Originalism and textualism are to blame. These legal doctrines hold that laws mean whatever reasonable people who lived at the time they were written would have though them to mean. For these folks, the benefits and harms that would result from their specific rulings in context are irrelevant. If in 1968, few would have thought that the Fair Housing Act blocked unintentional discrimination, the act doesn’t block unintentional discrimination. If there’s evidence that when the Affordable Care Act was written, legislators wanted to deny subsidies to states that didn’t start their own exchanges to create an incentive for them to do so, then that’s what the act says. If no one thought the 14th amendment entailed gay marriage in the 1800’s, then it doesn’t do that today.

These doctrines effectively allow the views and attitudes of the past to dictate current policies even when this will have devastating consequences for people today. Originalist justices argue that the legislative and executive branches should rectify those consequences, but the reality today is that the other branches are not up to the task. The justices cannot and must not pretend that if they were to strike down the subsidies, congress would simply fix the law. Congress has no intention of doing anything that might contribute to the success of Obamacare, regardless of whom they might benefit by doing so. The same goes for gay marriage and fair housing–there is no guarantee that the legislatures are going to rectify injustices of their own accord, particularly when those injustices target minorities who, by definition, have less voting power in democratic political systems. There are serious consequences to necrocracy–we cannot and must not pretend that it’s an ideologically neutral position. It privileges the status quo and the views of past generations to an arbitrary and unjustified degree.

It’s repugnant that we have three, maybe four justices who make their decisions entirely based on what the historical record indicates past people may have believed, irrespective of the consequences for real people today. If just one or two of the other justices made mistakes, we could have ended up with morally repellent decisions. Thankfully, the remaining justices cared about the consequences of their actions. Let’s hope we remain so fortunate in the future.

In the meantime, the preservation of the Fair Housing Act and Obamacare is to be savored, and the implementation of nationwide gay marriage is to be celebrated.