By Adam Stromme

The last few days have been a roller coaster in the marble halls of the American High Court. Within 24 hours, it saved both the Affordable Care Act (often referred to as Obamacare) and voted in favor of enshrining the right to marriage for same-sex couples in all 50 states. For liberals– and Strommuses— the decision is rightly a cause for celebration. For conservatives, it is a damning indictment of both the manufactured crisis driving the challenge to Obamacare and the terrifying behavior of the American right towards homosexual partnerships.

That is why the recent decisions in King v. Burwell regarding Obamacare and Obergefell v. Hodges regarding gay marriage are so relieving; they indicate a historical awareness of the necessity of an active and discerning court. To have ignored the plight of discrimination of the homosexual community and the profound mass-based movement that has risen in response to it would be to plead willful ignorance in the face of injustice.

Yet many conservatives, and a few sitting on the bench, think differently. For them, something akin to judicial activism has arisen in the powerful precedents set by the court. Though it is certainly unpopular to do so amidst the post decision revelry, their complaints are worth looking into. In the case of Burwell, conservatives hold that the liberal members of the court unilaterally advanced the agenda of the Obama administration through a creative interpretation of a hole in the language of the ACA. And in the Hodges case, they see a disconcerting break in precedent as sign that the courts have taken the law into their own hands.

Many conservatives, and a few sitting on the bench, think differently [of the verdicts]. For them, something akin to judicial activism has arisen in the powerful precedents set by the court…

How truthful are these accusations?  Is there reason for concern on the part of the actions of our liberal justices? To find out more, we must reacquaint ourselves with the premises of the cases that have let to such landmark decisions.

King v. Burwell

King v. Burwell was the curious case of David King–a Vietnam veteran and taxi cab driver– and three other Virginians who did not want to buy health care, as mandated by Obamacare. In order to avoid doing so, they attempted to exploit a loophole in the language of the law which waived the requirement for anyone who would be forced to pay eight percent or more of their income for insurance. The problem was, tax credits provided by the federal government would’ve brought the costs of insurance for the plaintiffs below eight percent. So, in a perverse twist of logic, they attempted to argue that the mandate which only enabled them to acquire insurance in an “exchange established by the State” could not apply to them because the exchange established in their state, Virginia, was established by the federal government as opposed to the state government, thus barring them from aid, raising the cost of getting insurance, and exempting them from coverage.

The majority opinion of the court, led by conservative Chief Justice John Roberts, held a commonsensical view– echoing the opinions in the lower courts by insisting that “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them.” The minority, spearheaded by conservative Justice Antonin Scalia, instead argued that the court has no right to contextually interpret the meaning of “established by the state” as meaning anything other than those states which establish their own healthcare exchanges.


Associate Justice Antonin Scalia, author of a scathing indictment of the King v. Burwell majority

Providing a curious interpretation of a healthcare expansion which would willingly deny coverage to 9.6 million individuals, Justice Scalia insisted that the court “has no free-floating power ‘to rescue Congress from its drafting errors,’ ” referring to the poor language present in the law. Although surely a feasible argument from a myopically literalist perspective, such an interpretation would have been a profoundly hypocritical precedent for Justice Scalia, who previously argued that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme,” to have assumed.

Furthermore, it would have destroyed Obamacare. By denying subsidies to healthy individuals who otherwise would not have purchased care, Justice Scalia’s precedent would have left only the sickest to drive up premiums which in turn would kick out even more healthy individuals. Such a ripple effect would eventually lead to what those in the insurance market referred to as a “death spiral” for the bill. It is patently clear in this case that the courts set no real threatening precedent in King v. Burwell.

Obergefell v. Hodges

Obergefell v. Hodges, on the other hand, is a far more complicated case. It is actually the combination of four challenges to same-sex bans in various states, consolidated under the lawsuit filed by James Obergefell. In it, the prosecution argues that state marriage bans violate their Fourteenth Amendment rights– with one citing rights of litigation found in the Civil Rights Act– to Due Process and Equal Protection under the law. The states, on the other hand, maintain that the question of recognizing same-sex couples from other states and also allowing same-sex marriages within their own states are a matter which ought be resolved on a state by state basis.

Demonstrators protesting after the verdict of Obergefell v. Hodges

Demonstrators celebrating after the verdict of Obergefell v. Hodges

The difficult element of the Hodges case is that the precedent which the states defer to, and also which the appeals court used to reverse the original verdict in favor of the state governments, is one that was formed in the Supreme Court barely two years ago in United States v. Windsor.

In the previous precedent Edith Windsor, a widow of a same-sex marriage that was legalized in Canada and recognized by the state of New York, was at risk of suffering heavy estate taxation under the Defense of Marriage Act (DOMA) which identified marriage as existing between a man and a woman at the federal level. In a tense 5-4 verdict, the courts ruled that DOMA was unconstitutional because it contravened the sovereign right of states to decide the status of same-sex marriage independently of the federal government and, at the same time, condemned same-sex marriages to be less than heterosexual marriages: an evident violation of the Equal Protection Clause of the Fifth Amendment. Here the precedent was set that the status of same-sex marriage should be the product of democratic deliberation within states, yet also asserted the right of individuals to Equal Protection under the law regarding marriage. In short, there were two conflicting standards that were used to decide the case.

Now, in Hodges, these two standards were set against one another: are same-sex marriages eligible for Equal Protection under the Fourteenth Amendment or are the rights of same-sex couples subject to state law? This was a position that, despite the soaring rhetoric of the eventual majority expressed by Justice Anthony Kennedy, the court clearly vocalized that it did not want to be in. Now caught, the court had to either affirm, or reject its standing in the decision.

Chief Justice Roberts and the minority took the latter option, proclaiming that the ruling “had nothing to do with” the Constitution, and thus was out of their purview. The precedent set in Windsor to the minority clearly established that gay marriage was to be an issue of states rights, and not of constitutional standing. Regardless of their personal beliefs on the matter, the minority asserted it was not in their purview to decide the status of gay marriage over the opinions of millions of people.

In Hodges, these two standards were set against one another: are same-sex marriages eligible for Equal Protection under the Fourteenth Amendment or are the rights of same-sex couples subject to state law?

So on what grounds does the majority stand? Is it a troublesome example of judicial activism as some have voiced?


Rights v. Democracy


Associate Justice Anthony Kennedy, author of the majority decision in Obergefell v. Hodges

“The central purpose of the Fourteenth Amendment” in the words of one observer in the court, “is to protect minority groups that have long experienced irrational prejudice and are unable to protect themselves in the democratic process.” Providing several examples in the 70’s and 80’s which the institution of marriage was refined and equalized from its archaic patriarchal roots, Justice Kennedy argues that “these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage” and further establishes the “dynamic of our constitutional system” to ensure “that individuals need not await legislative action before asserting a fundamental right.” In so doing, he urges his fellow justices to accept the fact that the Constitution is a living document– as the founding fathers intended it to be– and that to shy away from opportunities to recognize positive developments for underrepresented minorities that do not harm society at large is to use “caution” regarding the political process as a pretext to perpetuate injustice.

So while the fact that the court’s decision was made over their own precedent favoring increased participation is seen by some as regrettable, it must be understood relative to the harms of rejecting the Constitutional grounds for action when they arise. That the rights of individuals cannot be subject to the democratic process has been a powerful point of contention since time immemorial. Gay marriage will not become accepted in the United States over night, but it is the obligation of the courts to prevent discrimination and promote the public welfare; and fulfilling that duty is well worth the charge of activism.