Topic: Law and Civil Liberties

King v. Burwell: How the Supreme Court Helped President Obama Disenfranchise His Political Opponents

Criticizing my recent post-mortem on King v. Burwell, Scott Lemieux kindly calls me “ObamaCare’s fiercest critic” for my role in that ObamaCare case. Other words he associates with my role include “defiant,” “ludicrous,” “farcical,” “dumber,” “snake oil,” “ludicrous” (again), “irrational,” “aggressive,” “comically transparent,” and “dishonest.”

Somewhere amid the deluge, Lemieux reaches his main claim, which is that (somehow) I admitted: “the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to ‘enfranchise’ the people who voted against the bill.” I’m not quite sure what Lemieux means. But perhaps Lemieux doesn’t understand my point about how the Supreme Court helped President Obama disenfranchise his political opponents.

As all nine Supreme Court justices acknowledged in King, “the most natural reading of the pertinent statutory phrase” is that Congress authorized the Affordable Care Act’s premium subsidies, employer mandate, and (to a large extent) individual mandate only in states that agreed to establish a health-insurance “Exchange.” That is, all nine justices agreed that the plain meaning of the operative statutory language allows states to veto key provisions of the ACA—sort of like the Medicaid veto that has existed for 50 years and lets states destroy health insurance for millions of poor Americans. The Exchange veto includes the power to shield millions of state residents from the ACA’s least-popular provisions: the individual mandate and the employer mandate.

An Unnecessary Indictment of Dylann Roof

Today, the Justice Department indicted Dylann Roof on 33 federal hate crime charges for the killings of nine people at Emanuel A.M.E. church in Charleston last month. This indictment is entirely unnecessary.

Hard as it may be for some to imagine now, there was a long time in this country when racially and politically motivated violence against blacks was not prosecuted by state and local authorities. Or sometimes, as in the case of Emmett Till—the young boy from Chicago who was lynched in Mississippi for allegedly being too forward with a white woman—prosecution was a farce and the perpetrators were acquitted.

Poll: 51% Say Business Owners Should Serve Same-Sex Couples, but 59% Say Wedding Businesses Should Be Allowed to Decline

A recent AP/GfK poll finds a slim majority (51%) of Americans say businesses with religious objections should be required to serve same-sex couples. Forty-six percent (46%) say these business owners should be allowed to refuse service. However, for business owners specifically offering wedding-related services, Americans say these particular businesses “should be allowed to refuse service” by a margin of 59% to 39%. 

These results correspond with the nuanced argument Cato scholar Roger Pilon recently made in the Wall Street Journal. Pilon explains that businesses open to the public ought to serve everyone; however, business owners with religious objections (who are not a monopoly) should not be forced to participate in the creative act of planning and participating in the wedding of a same-sex couple. Referring to two couples who recently were heavily fined for declining to provide services for same-sex weddings, he writes:

“Because they represent their businesses as open to the public, the Kleins and Giffords shouldn’t be able to deny entrance and normal service to gay customers… But it is a step further—and an important one—to force religious business owners to participate in a same-sex wedding, to force them to engage in the creative act of planning the event, baking a special-order cake for it, photographing it, and so on.”

Americans seem inclined to support this nuanced view that businesses should serve all customers regardless of sexual orientation, religion, race, gender, income, national origin, etc.—but that wedding-related businesses requiring owners’ direct participation in the wedding should not be forced to provide service against the owners’ religious beliefs.

Finding Rights in the Constitution

Last month, when Justice Anthony Kennedy found that same-sex marriage was a “fundamental right,” did he and the four other justices for whom he wrote find a “new” constitutional right? Or is it rather, as some of us have long argued, that the Constitution protected that right for nearly a century and a half, like the right to same-sex sodomy (Lawrence v. Texas), to sell and use contraceptives (Griswold v. Connecticut), to educate one’s child in a parochial school (Pierce v. Society of Sisters), and, dare I say, to freedom of contract in employment (Lochner v. New York)?

I address those questions in a piece in today’s National Law Journal, defending Kennedy’s conclusion in Obergefell v. Hodges but taking exception to his reasoning. The fundamental right to same-sex marriage rests mainly, he argued, on the liberty interest that is protected under the Fourteenth Amendment’s Due Process Clause. Not so, said Justice Clarence Thomas in his dissent. Drawing extensively on John Locke’s state-of-nature approach to political legitimacy, which the Founders and Framers drew on as well, Thomas argued that the Obergefell plaintiffs were not denied the right to marry. They were perfectly free to go to any willing clergyman who would marry them—and the state would not have interfered with their liberty to do so. What they wanted, he saw, was a state license, the state’s positive recognition of the marriage, and the legal benefits that go with the state’s recognition.

Kennedy’s conclusion as against the state, therefore, belongs properly not under the Fourteenth Amendment’s Due Process but under its Equal Protection Clause. The state denied same-sex couples the same benefits it granted opposite-sex couples and thus discriminated against them. Thus, the right to marry someone of the same sex may be a natural right that anyone would enjoy in the state of nature; but once we leave that state, if an actual state we’re in grants the privileges of marriage, that right is entailed by and derived from the Fourteenth Amendment’s Privileges or Immunities Clause; and its denial is properly litigated against the state under the Equal Protection Clause. Unfortunately, Thomas never developed those points—nor could he have without coming out for same-sex marriage—nor did Kennedy’s brief and gauzy discussion of equal protection get to the heart of the matter either.

The Right to Earn a Living Deep in the Heart of Texas

The same day three weeks ago that the Supreme Court ruled on same-sex marriage (Obergefell v. Hodges), our friends at the Institute for Justice claimed a strong victory in favor of individual rights and economic freedom in an important case before the Texas Supreme Court (a.k.a. SCOTEX).

In Patel v. Texas Department of Licensing and Regulation, the court was faced with a state constitutional challenge to a licensing requirement that hair threaders acquire cosmetology licenses – to the tune of nearly $9,000 and 750 hours – when such classes “are not related to health and safety or what threaders actually do.”

EEOC: Let Us Imagineer ENDA For You

After a period of foreshadowing and rumor, the Equal Employment Opportunity Commission has now gone ahead and ruled that employment discrimination on the basis of sexual orientation is forbidden under existing federal civil rights law, specifically the current ban on sex discrimination. Congress may have declined to pass the long-pending Employment Non-Discrimination Act (ENDA), but no matter; the commission can reach the same result on its own just by reinterpreting current law.

It’s not the commission that gets to have the final say on that, however; it’s the federal courts. And there is a fair trail of precedent, including circuit court authority, rejecting the proposition that sex discrimination in this setting can be stretched to cover sexual orientation discrimination. Against that, it will be argued that some recent case law has nonetheless drifted toward the idea; more important, judges will be asked to defer to the EEOC in its (new) expert opinion.

President Obama Addresses Mass Incarceration

Today, President Obama became the first sitting president to tour a federal prison when he went to El Reno federal penitentiary in Oklahoma. This visit comes two days after the president spoke about criminal justice reform to the NAACP, where he focused his remarks on reducing the sentences for non-violent drug offenders. Commendably, Obama also talked about the living conditions of the incarcerated:

“[W]e should not tolerate conditions in prison that have no place in any civilized country. We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison. And we shouldn’t be making jokes about it in our popular culture. That’s no joke. These things are unacceptable.”

Indeed, the horrific stories that come out of America’s jail and prison systems are repugnant to any sense of fairness and justice. For that and many other reasons, the president’s recent actions on criminal justice are to be lauded, but also critically examined.

Drug offenders make up a significant portion of the federal prison population, but mass incarceration reduction requires reforms beyond the federal level. Most of the people incarcerated in the United States are in local jails and state prisons for violating municipal and state laws, not federal ones. Moreover, as my colleague Adam Bates wrote this week, the president hasn’t done as much as he could to reduce the federal prison population, even in this limited realm where he has sweeping constitutional authority to do so.

Obama said, “If you’re a low-level drug dealer… you owe some debt to society. You have to be held accountable and make amends. But you don’t owe 20 years. You don’t owe a life sentence.”

The underlying problem with Obama’s approach is the continued reliance on the criminal justice system to be the primary tool for handling our nation’s drug habit. In a society that wants to discourage illicit drug use and sale, it’s not at all clear that throwing a low-level dealer in a prison cell for any amount of time, let alone 20-years-to-life, makes the dealer a better citizen or makes society safer. If incarceration does neither of these, and at such high fiscal cost, perhaps non-criminal alternatives should be considered.