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Two Hard Cases, Two Bad Laws

by Mark Gabrish Conlan/Zenger's Newsmagazine Monday, Nov. 28, 2011 at 8:46 PM
mgconlan@earthlink.net (619) 688-1886 P. O. Box 50134, San Diego, CA 92165

The November 14 decision by the U.S. Supreme Court to consider the constitutionality of so-called "Obamacare" and the November 17 decision of the California Supreme Court that the proponents of Proposition 8 have legal standing to appeal it all the way to the U.S. Supreme Court are both disasters for the progressive community. But they also highlight the conflict between general principles of justice progressives should support and tactical positions in specific cases that may work to our short-term advantage but cause us problems later on.

Two Hard Cases, Two Bad Laws


Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

There’s an old saying in the legal profession that “hard cases make bad law.” In mid-November two court decisions threatened to prove that once and for all. On November 14, the United States Supreme Court agreed to hear a constitutional challenge to the Affordable Care Act, the official name of what’s almost universally referred to by the pejorative “Obamacare.” Among the questions the justices will be ruling on are whether the law can require every American either to purchase private health insurance or pay a “penalty,” “fine” or “tax” (and which of those words apply is itself a key issue the justices will have to decide!) to the government; and whether, if the so-called “individual mandate” is unconstitutional, can the rest of the law be sustained or will the whole thing be thrown out?

Three days later, on November 17, the California Supreme Court unanimously ruled that ProtectMarriage.com, the official sponsors of Proposition 8 — the initiative by which California voters decided in November 2008 that same-sex couples would no longer be able to marry in this state — have so-called “standing,” the legal right to appeal federal judge Vaughn Walker’s decision that the initiative was unconstitutional. The state court got involved when the three-judge panel hearing the case for the federal Court of Appeal for the Ninth Circuit asked them for a ruling under state law whether the proponents of an initiative would have the legal right to represent it in court if the people who are ordinarily supposed to do that — the elected governor and attorney general — won’t.

These are hard cases not only for the legal system in general but for me personally. The decision by the U.S. Supreme Court to hear the challenge to the constitutionality of Obamacare and the likelihood that the Proposition 8 case will also make it to the U.S. Supreme Court are both potential political disasters for the progressive community. The U.S. Supreme Court is currently in the grip of five Right-wing ideologues who have already signaled their willingness to run roughshod over century-old precedents in order to fulfill their role in a political movement aimed not only at winning immediate electoral and policy victories for the Right but making it impossible that those victories could ever be reversed.

Already they’ve set aside virtually all restrictions on the ability of corporations to influence the political process. They’ve extended the obnoxious doctrine of “corporate personhood” in ways that actually give corporations more rights than mere mortal humans. They’ve used technical nit-picking to deny victims of Wal-Mart’s persistent discrimination against women any realistic chance of relief in court. They’ve directly determined the outcome of at least one Presidential election, and they’ve found for the first time in U.S. history that the Second Amendment grants an individual right “to keep and bear arms” that has nothing to do with “a well-regulated militia.”

Given the record of the current justices — especially the five (John Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy) who constitute this Right-wing activist wing which aims, like the modern American Right generally, to return this country to a late-19th century concept of politics and economics — believing that the U.S. Supreme Court will uphold Obamacare or throw out Proposition 8 makes about as much sense as believing in Santa Claus. In a November 15 Los Angeles Times column, law professor Erwin Chermerinsky laid out an argument that the Court’s previous decisions interpreting the constitutional clause giving Congress the power “to regulate … commerce between the states” virtually require it to declare Obamacare constitutional.

Chermerinsky cited the Court’s 2005 decision in Gonzalez v. Raich, in which “the court held that Congress constitutionally could criminally prohibit and punish cultivation and possession of a small amount of marijuana for personal medicinal use.” He added, “If Congress’ commerce clause powers allow it to prevent Angela [sic] Raich from growing a small amount of marijuana to offset the ill effects of chemotherapy, then surely it has the authority to regulate a $2-trillion [health care] industry.” The Raich case hit home for me personally because I met Angel McClary Raich (her real name) when she gave a press conference in San Diego before the Court ruled on her case, and I will never forget this frail woman with failing eyesight for whom only marijuana stood between her and blindness.

Louis Brandeis, the legendary attorney who argued social justice cases before the U.S. Supreme Court and then was appointed a Justice himself, pioneered the idea that appeals courts, including the Supreme Court, shouldn’t just look at the cases before them as a matter of law. They should consider the effects of their rulings on real people. When he was called upon to defend the constitutionality of a statute outlawing child labor, Brandeis filed a brief devoting one page to the legal issues — and over 200 pages to sociological research showing what child labor did to the children involved, their families and society as a whole. Eventually the liberal justices appointed to the Supreme Court by Franklin Roosevelt, Harry Truman and Dwight Eisenhower adopted the Brandeis approach — and then in the 1970’s the Court swung to the Right again and eventually returned to its historic role of relying on crabbed, nit-picking legalisms to affirm the rights of corporations and the rich and slam the doors of justice in the faces of everyone else.

So the current Right-wing majority on the U.S. Supreme Court will have no trouble declaring Obamacare unconstitutional. Years of precedents establishing a broad meaning of the interstate commerce clause? Irrelevant, just as the years of precedents on the legitimacy of regulating gun ownership and corporate influence in politics were irrelevant because they got in the way of the Right-wing majority’s ideological agenda. A contradiction between saying a sick woman can’t have marijuana to keep from going blind and saying the government can’t require people to carry health insurance? No problem; the current Court majority simply decides that Congress’s power to regulate interstate commerce applies when Congress does something the justices like, and doesn’t when Congress does something they don’t like. What’s more, since virtually all the federal government’s power to regulate the economy stems from the interstate commerce clause, if the current Right-wing court can cut back on its reach, they can declare everything from the Clean Water Act to the minimum wage unconstitutional, and thereby bring us closer to the dog-eat-dog Ayn Rand libertarian world they, like the rest of the American Right, want this country to become.

As for the Proposition 8 case, the idea that a court dominated by such a hard-line Right majority could actually do something so radical as extending civil-rights protection to same-sex couples seeking marriage equality was always a pipe dream. The principal pipe dreamer was Ted Olson, who before he filed the Perry v. Schwarzenegger case challenging Proposition 8 was a charter member of the Right-wing attack machine. Olson joined forces with David Boies, the Democratic attorney who had opposed him on Bush v. Gore in 2000, with the idea that a properly framed case challenging marriage inequality as a denial of equal protection under the 14th Amendment would win the presumed “swing vote” of Justice Anthony Kennedy.

It seemed like a good idea at the time. After all, Justice Kennedy had written the two greatest decisions the Queer community ever got from the U.S. Supreme Court: Romer v. Evans (1996), which threw out an anti-Queer initiative in Colorado on the ground that it unfairly handicapped the Queer community in building majority support for Queer rights; and Lawrence v. Texas (2003), which abolished anti-sodomy laws nationwide. But that was then and this is now. The current Justice Kennedy signaled his change of heart on Queer issues when he joined the majority opinion allowing the Boy Scouts of America to discriminate against Queers and atheists on the ground that they were a “religious organization” and therefore had a First Amendment right to restrict their membership. He cemented it when he personally made the decision not to allow the trial of Proposition 8 in Judge Walker’s court to be televised live — and in his opinion he said that where once Queers had been the oppressed minority, now it was Christians and other supporters of “traditional marriage” who were being harassed and deprived of their political rights by the Queer community.

The likely outcome of the Obamacare suit is a 5-4 decision declaring the individual mandate unconstitutional as a gross overstepping of Congress’s power to regulate interstate commerce. It’s less clear whether the justices will take the more radical step of throwing out the whole law as unconstitutional; it’s possible that Clarence Thomas and/or Antonin Scalia will take that position in a concurring opinion, but the other three Right-wing justices will draw back — at least partly because, like the rest of the American Right, they may be so convinced the 2012 elections will put Republicans in complete control of the federal government and then “Obamacare” will be toast anyway.

As for the Proposition 8 case, the only real question is whether the vote will be 5-4 or whether some of the so-called “liberal” justices in the minority will find it too radical for the court to declare, as a matter of constitutional law, that the understanding and definition of “marriage” that has prevailed throughout U.S. history — one man and one woman — is a civil-rights violation. And while most of the Right-wing justices will probably preserve the right of individual states to allow same-sex marriage, Clarence Thomas will file a concurring opinion stating that according to his reading of the Constitution, all laws that allow marriage between anyone other than one man and one woman are presumptively unconstitutional.

What’s more, even if a miracle happens and Ted Olson somehow finds five votes on the current U.S. Supreme Court willing to go against a half-millennium of American tradition and find marriage equality not only desirable but constitutionally mandated, that’s not going to be the end of the story. The radical Right will immediately mobilize for passage of a Federal Marriage Amendment to nullify the decision. The barriers to a constitutional amendment are pretty formidable — approval by two-thirds of each house of Congress and ratification by 38 of the 50 states — but not impossible. Enough socially conservative or just plain scared Democrats could well join the ascendant Republicans in the next Congress to pass the amendment, and at least 35 states have already passed their own versions of Proposition 8.

Both the Obamacare and Proposition 8 cases pose uncomfortable moral dilemmas for progressives. We find themselves defending fundamentally unjust but politically convenient positions. The “individual mandate” to purchase health insurance is an outrageous concept on its face. Never before in the history of the U.S. has every resident of this nation been required to buy a product of a private industry as a condition of being allowed to live here. Indeed, President Obama rightly opposed an individual mandate when he ran for the Democratic nomination in 2008 — the fact that Hillary Clinton was for it and Obama was against it was one reason I voted for him over her in the California primary — only to embrace it once in office.

The idea that we have to buy a particular capitalist product as a condition of being allowed to live in the U.S. is obnoxious enough on its face. The common analogies to requirements that drivers carry auto insurance and doctors carry malpractice insurance are false. Driving and practicing medicine are legal privileges, things that the government giveth and the government can taketh away. You don’t want to buy auto insurance? Don’t drive. You don’t want to buy medical malpractice insurance? Don’t be a doctor. You don’t want to buy private health insurance from an industry that adds absolutely no value whatsoever to the health care system — it just sits there like a vampire, sucking money from the system and making its profits by denying rather than facilitating health care — and, if Obamacare is upheld, you’re S.O.L.

As for Proposition 8, my heart sank when I heard how the California Supreme Court ruled because I knew having the case thrown out on standing was the one realistic way we could ever hope for the return of marriage equality in California. I feel this issue on a personal level because my husband Charles and I were both politically savvy enough that we got married within the 4 ½-month “window” between the time the California Supreme Court’s decision for marriage equality took effect and the time the voters reversed it with Proposition 8. As I’ve said at more than one marriage equality event, I’m tired of my husband and I having “special rights” to be married while other Gay and Lesbian people in long-term committed relationships who want to marry can’t.

But at the same time, throwing the Proposition 8 case out on standing would have been fundamentally unjust to the people who voted for it and the people who worked hard for its passage. As the court declared in its opinion, if the governor and attorney general of the state were permitted effectively to repeal an initiative simply by refusing to defend it against a court challenge, the whole idea of the initiative — the people coming together to make laws directly when their elected representatives refuse to do so — would crumble into dust.

Though the enormous cost of qualifying an initiative for the ballot and mounting a campaign for it in a state as large as California has turned the initiative from a weapon against the special interests to one most often used by special interests — corporations, wealthy individuals or, in the case of Proposition 8, the enormously well-funded Roman Catholic and Mormon churches — to impose their will on a scared and easily manipulated electorate, it’s still conceivable that a liberal initiative (like the one consumer advocate Harvey Rosenfield just announced to give the state power to regulate health insurance premiums) could pass and a Republican governor and attorney general could decide they would effectively veto it by refusing to defend it against the inevitable lawsuits against it by the corporations it would regulate.

Indeed, something quite similar has actually happened in Wisconsin over the issue of marriage equality. The state legislature had passed a domestic partnership bill, which the radical Right sued in state court to have thrown out on the ground that it violated Wisconsin’s version of Proposition 8. Wisconsin’s previous Democratic governor had defended the suit in court, but when he was replaced by Republican Scott Walker, Walker announced that he was dropping the defense and conceding in court that a domestic partnership bill did constitute legal recognition of marriage equality in violation of the state constitution. It’s an object lesson in how positions taken in one context because they seem to offer a way to victory for our side can come back to bite us in a different context when the roles are reversed.
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