My thoughts on the recent Supreme Court rulings
First and foremost, with respect to the first ruling in King v. Burwell, I owe Pik an apology. I had defended Chief Justice Roberts way back when for taking a strategic long view with an eye to setting up Obamacare for the kill later on. But Roberts' arguments in King now clearly show he sees the Court's role as one of providing a legislative rehabilitative salvation for the law rather than ruling on the text of it. That, and getting more Likes on Facebook.
He, at least I think Roberts is the one who made passing reference to this, is right on one point, though. It's fully in the hands of Congress to repeal and/or replace Obamacare as it sees fit. This is entirely as it should be. We shouldn't be hoping SCOTUS will do our difficult work for us any more than we should be hoping Roberts will shoot our dog for us to spare us the unpleasantness of the task. Now the situation is crystal clear: elect a Republican Congress with spine and a Republican President to sign their work into law and handle this whole matter the right way, as the writers of the Constitution intended.
Now, with respect to today's opinion in Obergefell there is one enormous question that immediately eclipses everything else: who will be the third and greatest fool in the Greater Fool Theory of Publishing to sign up to lose money on Rod Dreher's BO book? Dreher has been positively leaving a trail of bodily fluids the last several days in eager anticipation of today's ruling coming down as it did, because what's bad for Christian conservatives is good for anyone wanting to push a snake oil cure for what just hit them.
Aside from some unknown publisher's as yet unbooked losses, though, let's work through what today's Obergefell ruling really means.
First, if you're Rod Dreher or Ace at AOSHQ and you're reprising Bill Paxton's "Game over, man!" (NSFW) scene from Aliens, here's what's really going through your head: "Okay, I'm bent over this stump, I've dropped my pants, oh, my, what will happen to me next? Will they use a lube? Oh, it would be so much more terrible if they didn't use a lube, wouldn't it? It would! It would! I can hardly wait!"
Since I myself am not stump broke like Rod Dreher, here is, alternatively, what is going through my head.
A cohabitation license issued by the State must be available to all comers in order not to discriminate, which carries this interesting little clusterbomb implicit within it. Nothing in Obergefell mandates for two-person marriages or against triad or larger unions, plus, this is no longer the States' problem, not even the Feds' - it effectively rebounds right back to SCOTUS as soon as it arises.
Whether you wish to call two guys cohabiting for butt sex marriage or a dog show remains entirely up to you. If you whine, "but they'll make me call it marriage!", see stump broke, above.
If your church recognizes gay unions, consider getting another church that does not. Those that do not do so voluntarily can not and will not be forced to do so.
As for federal funding, if you can be bribed, please send your name and the particular favors, skills, goods, or elite access you are willing to barter for money to Keith care of EQE so that I may consider whether I have a need to buy you and use you for my own ends in some capacity.
In the meantime, the betting pool is now open on the publisher even more stupid than Judith Regan turned out to be.
I'll comment first on King v. Burwell since I've read that opinion. I'll chime in on the SSM opinion later, once I've read it (but my first reaction is that the damage it will inflict on the Nation will be incalculable).
ReplyDeleteBack to King: the rationale applied by Roberts opinion is simply "whatever it takes" to achieve the desired result. It is the purest example of results-oriented jurisprudence that one can find.
The basis of the decision is that the clear language of the statute had to be found ambiguous in order for the larger "interlocking" purposes of the ACA, and Chevron deference to HHS, to permit the non-statutory subsidies. But the clear language of the text was far from ambiguous -- so Roberts had to cast aside several long-standing rules of statutory construction and interpretation (see Scalia's dissent) in favor of the context of the statute to do that. As several including Scalia himself have said, words no longer have meaning.
The most favorable reason I've seen for Roberts holding this way was given by 'Puter over at the great Gormogons blog: once Roberts saw that five were already going to uphold the ACA, he joined so that he could write the opinion himself and limit the damage done. I can see the wisdom in that, and indeed the decision is extremely specific and won't have much impact outside of the ACA itself (and the federal fisc). But oh, the price exacted on his intellectual integrity and reputation was very dear indeed.
I look forward to what you have to say on Obergefell, Pik.
DeleteBut until then, let's keep one thing in mind. The only power the court wielded and the only result that came from it is the formal legal mandate to issue gays State marriage licenses and the mandate that they be entitled to all the benefits and no more that go along with those licenses. Nothing more.
Not meaning, although you're hearing a lot of gushing extrapolating about the court "affirming our common humanity" and other merely suggestive rhetoric.
Bottom line: beyond the bare extension of State marriage and its benefits to gays, everything, everything else will be a pure voluntary giveaway on the part of those who choose to do so.
Like I said, Rod Dreher is bending over backwards to convince Christian conservatives to give in and hand over every possible extrapolation from that bare legal ruling, including meaning itself.
I disagree that we're talking "incalculable damage" from either decision. At this point our "elites", including SCOTUS, are just confirming what they think the mob is demanding.
ReplyDeleteThat means the Republic has already died, probably before I was born. If we needed SCOTUS to save things, we were already doomed.
So I'm actually optimistic. I don't think things will get significantly worse. Certainly not in the way the hysterics in the Catholic blogosphere are predicting.