UHLC professors find controversial issues far from settled despite recent U.S. Supreme Court rulings

The U.S. Supreme Court issued decisions in recent days on several controversial issues, including upholding provisions of the Affordable Care Act, declaring same-sex marriage a constitutional right, finding Texas is not violating free speech by refusing to allow the Confederate battle flag on license plates, and striking down stringent EPA air pollution rules. University of Houston Law Center professors look at the ramifications of some of these rulings and issues that are likely to arise.

“I suspect that we'll see legal battles on a number of issues ancillary to marriage that the Supreme Court did not address in this decision.  Questions whether states can discriminate against same-sex couples when it comes to adoption, the scope of permissible religious exemptions for state employees, and probably many other issues.  At the same time, I think the ‘other side’ also will continue to push.  Many gay rights activists see a federal anti-discrimination statute barring discrimination on the basis of sexual orientation as the next step in their fight, and increased protections for transgendered individuals are also on the to-do list.  I suspect the fight will not be as protracted, as violent, or as bitter as the post-Roe v. Wade battles over abortion have been simply because as time passes, I think we will continue to see public acceptance of the LGBT community grow.  Forty-two years from now (that's how long ago Roe was), I predict this will be a non-issue.”
-- Emily Berman, Assistant Professor of Law 

“Regarding the issue of marriage equality, there is a legal component and a political component.  I think we are seeing in Texas some political responses to the Supreme Court's recent opinion.  As a legal matter, I think it would be very unlikely that a court would conclude that a district clerk has the right to not provide service to a gay couple who wants a marriage license because the public employee had some religious objection to gay marriage.”
-- Thomas Oldham, John H. Freeman Professor of Law

“Conservative religious groups have shown concern over the Supreme Court decision in Obergefell v. Hodges, a case that has resolved the question of whether the U.S. Constitution establishes a right to same-sex marriage.  They fear that their current practices and student codes might run afoul of the public policy theory from Bob Jones University v. United States, and that the Internal Revenue Service disallow their tax exemptions. If this did occur, then the colleges would have a genuine test of their core principles, and if they do not comport with the ‘public policy’ requirement for tax exemption, they should render unto Caesar or surrender the public largesse that arise from tax exempt status.

“The sky is not falling, and just as segregated schools have learned to live with students of color when they banned them before Brown, and just like men’s public colleges have thrived with the admission of women, so will these colleges—whose beliefs were no less well established than those of the conservative Christian outliers—live with this new constitutional reality and public policy. Schools should not act as parents and censor their students’ personal choices, especially ones that are legal and have no bearing upon student fitness. There will be exceptions, depending upon the state and status of the school, where they can ban or regulate otherwise-legal behavior, such as drinking on campus or engaging in smoking in their rooms, but we will all find a way to cope with these core principles, maintain our appropriate standards, and educate our students. We should embrace the growing freedoms and opportunities.

“I attended Catholic schools, colleges, and law school virtually all my life, and studied for eight years in Catholic seminaries. Yet I do not believe that religious colleges can be safe harbors against properties that are in accord with public policy and Constitutional protection. Indeed, they cannot have it both ways. Their most principled actions may be to surrender the oppressive yoke they feel robs them of their privilege, and surrender their tax exemption. They hold the true keys to their own principled way.”
-- Michael A. Olivas, William B. Bates Distinguished Chair of Law and Director, Institute for Higher Education Law & Governance

“The Supreme Court’s holding in Obergefell v. Hodges that the Fourteenth Amendment guarantees the right to gay marriage in all states will have profound effects not just in the U.S., but abroad. Immigration authorities already had recognized gay marriage if it was determined to be lawful where it was performed.  Previously, the Obama administration recognized the unconstitutionality of the so-called Defense of Marriage Act (DOMA). The administration’s position was subsequently justified when the high court struck down key provisions of DOMA in 2012 in United States v. Windsor.  In that decision, the court held that the Fifth Amendment applied to invalidate provisions of DOMA which sought to confine the federal definition of marriage and spouse to apply solely to heterosexual unions. Only after Windsor did the administration begin officially recognizing gay marriage for immigration purposes.

“Friday's decision in Obergefell goes even further than Windsor. Now, the Supreme Court has held that not only can the federal government not restrict the definition to heterosexuals but that all the states must allow homosexual marriages, and importantly must recognize any such marriages that were lawfully entered into in other states (and presumably abroad, although the court’s decision does not explicitly say that).  In terms of contiguous countries to the U.S., it is worth noting that Canada has recognized and provided for homosexual marriage for about 10 years.  In 2010, the Supreme Court of Mexico, by a vote of 8-2 upheld the constitutionality of Mexico City’s same-sex marriage law and also later ruled that such marriages were valid throughout the country.

“For purposes of immigration, the fact that all states must allow for and provide homosexual marriages will do away with a major impediment that faced some immigrants who resided in states where such marriages previously were not permitted. Under certain situations immigrants who reside in the U.S. can adjust their status if they are in a bona fide, valid marriage to a U.S. citizen. It is no longer an impediment that they are homosexual and living in the U.S. in a state which doesn’t recognize gay marriage. That said, the decision also affects not just people trying to adjust their status but also people who are applying for certain immigration benefits, such as waivers from the immigration courts and administrative bodies, such as U.S. Citizenship and Immigration Services. Waivers may apply, depending on the type of case, where for example a person has a ‘qualifying relative’ such as a U.S. citizen spouse and can show certain equities exist, such as ‘extreme hardship’ to the qualifying relative. Other important relief may be available, such as lawful permanent resident cancellation of removal, and the recognition of same-sex marriage, although not specifically required by statute to make someone qualified for this type relief, will now be considered by the immigration judge as it relates to the overall equities of the case.

“Most importantly, as the majority of justices duly recognized in Obergefell, a decision to validate same-sex marriage is not just about the spouses involved, but also about their entire family unit:  the son or daughter of same-sex partners can now rest assured that the state will recognize their whole ‘family’ as legitimate. Immigrants who find themselves in immigration proceedings will now be able to point to the Obergefell decision and the immigration authorities will be bound to take into account their entire family.  The government now must recognize them as bona fide parents, spouses, and children as a product of a legitimate same-sex marriage.”   
-- Geoffrey Hoffman, Clinical Associate Professor and Director, Immigration Clinic

“Republicans will continue their call to repeal the Affordable Care Act on the 2016 campaign trail.  The reality though is that the ACA is here to stay.  If a Democrat wins the White House in 2016, the fervor to repeal ACA likely will die down. Even if a Republican takes the White House, repealing the ACA would be an uphill battle.  In the months leading-up to the King v. Burwell decision, Republicans were unable to coalesce around any of the legislative proposals that would have addressed the fallout from a Supreme Court decision for the plaintiffs.  This suggests that in the future it would be very difficult for Republicans to agree on a proposal to repeal and replace the ACA.  And even if Republicans did agree on a plan, the Democrats are likely to have enough seats in the Senate to block any such legislation.  So after the 2016 election, I expect the focus to shift from calls to repeal and replace the ACA to debates about how to improve it.

“As for the next big ACA case, I would keep an eye on House v. Burwell.  In this lawsuit, the House of Representatives is challenging the administration’s delay of the employer mandate.  They are also challenging the cost-sharing reduction payments to insurers on the grounds that Congress did not appropriate funds for this.  A decision that the administration’s cost-sharing reductions payments were illegal would have major impact – about 60 percent of those enrolled in exchange plans receive cost-sharing subsidies.  At the moment the key legal issue in the case is whether the House has standing to bring this challenge. 

“The King decision also has energized proponents of Medicaid expansion.  For example, after months of silence the governor of Virginia has renewed his calls for the state legislature to authorize expansion of the state Medicaid program.  The governors of Alaska and Missouri similarly spoke out in favor of Medicaid expansion in the days following the King decision.  While in the near-term I do not expect to see much activity in Texas regarding Medicaid expansion, if additional ‘red’ states expand Medicaid, eventually there will be greater pressure to similarly expand the program in Texas.
-- Jessica Lind Mantel, Assistant Professor of Law and Co-Director, Health Law & Policy Institute

To schedule an interview with professors, contactCarrie Anna Criado, UH Law Center Executive Director of Communications and Marketing, 713-743-2184, cacriado@central.uh.edu; John T. Kling, UH Law Center Communications Manager, 713-743-8298, jtkling@central.uh.edu; or Stephen B. Jablonski, Multimedia Specialist, 713-743-1634, sbjablon@central.uh.edu.

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