Constitution Daily

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Now, the Supreme Court gets really interesting

January 6, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at the issues of same-sex marriage and Obamacare as they head for dates with the Supreme Court.

800px-Supreme_Court_US_2010Each year, the Supreme Court starts slowly when it returns to Washington for a new term, even when some major cases await it on the horizon.   So far, it has issued only four rulings in the 31 cases that have come up for hearings.   Its most noteworthy action in the term so far was its decision on the first day to bypass the same-sex marriage issue in cases from five states.   But, with their return this week from a long winter break, the Justices are heading into a potentially momentous period.

The coming weeks bring a new look by the Justices at the same-sex marriage question, in cases from five more states, and will provide a make-or-break test for President Obama’s most significant domestic program, the nearly five-year-old federal health care law.

Behind both of those issues lurk larger questions about the role of the courts in answering some of America’s most divisive and consequential questions.   The marriage cases are this generation’s version of a constitutional dispute over the nature of American culture, and the new health care controversy is a monumental test of government power in the guise of a simple question about how to interpret four words in a federal law.

For those involved in the cultural conflict over same-sex marriage, a campaign that actually got its start in Hawaii in the early 1990s, the most decisive moment seems to have arrived. The Justices will meet on Friday in a private conference, and they will take a new look at the issue of whether the Constitution’s guarantee of legal equality or its promise of fairness in public policy will extend marriage rights for the first time to gays and lesbians.

It might be suggested that taking that step has been made easier for the Justices, because more than three dozen decisions have been issued by lower court judges striking down state bans on such marriages, so that gays and lesbians can now get married legally in all but 14 of the 50 states, plus Washington, D.C.   Just this week, Florida became the 36th same-sex marriage state. Seven out of every ten Americans live in a state where those marriages are now legal.

But the Supreme Court is the only tribunal with the authority – other than those with the power to amend the Constitution itself – to decide that same-sex marriage is to be a constitutional reality everywhere in the nation, accomplished in one fell swoop by the votes of nine judges.   It will give them pause, even if the way seems to have been paved for them.

Actually, the Justices have more than one question to answer.   There are the basic issues about getting married legally and about gaining official state recognition for same-sex marriage already performed in other states. But beyond that, the new cases will ask the Justices to spell out a formula for judging other kinds of discrimination against sexual orientation, and to decide whether, in fact, the whole issue of gay rights is better handled by state legislatures, Congress and the voters at the nation’s ballot boxes. One federal appeals court has already ruled that the choice should be left to those other government actors, not the courts.

If the Justices decide to take on the issue (and that now seems more likely than it turned out to be in October because there was then no split among federal appeals court, but now there is), the issue would likely come up for hearing in April, with a final decision before early next summer.

This time, the gay rights question is considerably more significant than when it came up in the court two years ago, in the case of United States v. Windsor. In that ruling, the court struck down a key part of the federal Defense of Marriage Act, and thus guaranteed equal access to federal marital benefits for same-sex couples – but only if they already were legally married under their own states’ laws.   The decision conferred no new marriage rights, as such. But, though that ruling was limited, in its own terms, it set off the wave of lower court rulings that overwhelming have gone in favor of marriage for gays and lesbians. Now, it is the Justices’ turn to have their say.

And it shortly will be the Justices’ turn to have something really important to say about the running controversy over how the nation deals with access to health care, especially for Americans with lower incomes.   The court already has agreed to rule on the next controversy over the Affordable Care Act, first enacted in March 2010.   And the ruling this time may have more to do with the survival of the Act, as a practical economic matter, than was the Justices’ ruling two years ago upholding the requirement that nearly every American must have health insurance or pay a penalty to the federal government.

This time, the court will have to sort out what Congress meant when it set up a system of federal subsidies to help people with lower incomes afford to buy health insurance on one of the new marketplaces set up under the 2010 law. At issue is whether those subsidies will be available only to consumers who shop for insurance at a marketplace set up by a state government – the situation in 16 states – or whether those subsidies will be available at marketplaces across the country, including the 34 states where the federal government set up those exchanges.

At the core of the dispute before the court is what Congress had in mind when it created the subsidy system, and applied it to exchanges “established by the state” – the four critical words in the Act on this point. Does that mean only state-established exchanges, or all exchanges?   If it is the latter, the economic assumptions of the entire Act will be more likely to come true, and the system with survive. If it the former, it is generally agreed that the Act will succumb to what has been called a “death spiral” – not enough people with insurance to make it worthwhile for insurance companies to offer affordable health care coverage.

The larger constitutional questions looming behind this version of the health care dispute include just how much leeway the Executive Branch has to modify a major federal program as it moves along toward fulfillment, and just when must the Executive return to Congress if such a program seems to run into roadblocks that will stymie it.   If the court rules for the challengers to the subsidy system, there is next to no chance that Congress would repair the new health care law, and that just might end the bold experiment in national health insurance policy.

These daunting prospects begin to face the Supreme Court right now.

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