Same-sex marriage, ‘Obamacare’ take center stage at UHLC Supreme Court roundup

University of Houston Law Center Associate Dean Marcilynn Burke, left, and Assistant Professor Emily Berman participate in a "Supreme Court Update" CLE.

July 27, 2015 –In its recently completed term, the U.S. Supreme Court made several landmark rulings – arguably the most sweeping of which was its finding that state bans on same-sex marriage were unconstitutional, making such unions legal across the land.

In another important decision, conservative Chief Justice John Roberts again wrote a majority opinion rejecting a challenge to the Affordable Care Act, often called “Obamacare.”

These two decisions, with a few others, were the focus of a “Supreme Court Update” hosted July 15 by the University of Houston Law Center and featuring some of the school’s leading scholars.

The free Continuing Legal Education session, presented in a UHLC classroom and also as a live webinar, provided an overview of the two major decisions (and their dissents) and also examined their future ramifications and impact on Texas.

Associate Dean Marcilynn Burke, moderator for the event, noted at the outset that until its most recent term, the court had avoided addressing head-on the constitutionality of nationwide same-sex marriages.

“But this time (in the case Obergefell v. Hodges) the question was finally presented to them squarely whether bans on same-sex marriages were constitutionally permissible, and if so, whether states that did not permit same-sex marriages were obligated to recognize such marriages performed in other states,” Burke said.

Assistant Professor Emily Berman, a constitutional scholar who joined the faculty last fall, provided the overview of the Obergefell ruling, which has been widely hailed by gay rights advocates and soundly scorned by others, particularly religious conservatives.

Berman said the majority in the decision, led by swing Justice Anthony Kennedy, “felt that the right to same-sex marriage is a fundamental right protected by both the due process and equal protection clauses of the 14th Amendment.  As a fundamental right, states would have to offer a very compelling justification to deny that right.  An in this case, the court found that the justifications were not sufficient.”

But she noted there were strong dissents, including by conservative Justice Antonin Scalia, who she said “characterized the opinion as a threat to American democracy.”

Looking at the Obergefell decision in its broadest context, Berman said it “presents a really stark example of a disagreement about the role of the court. This is the idea of what the court’s role is in the evolution of a society, and in the evolution of our understanding of rights and liberty.”

“Justice Kennedy made a very explicit argument for what is often referred to as a living Constitution; that is that the meaning of our Constitution changes and evolves as our society changes and evolves,” she said.

She quoted Kennedy, who wrote in his opinion that “the nature of injustice is that we may not always see it in our time.  The generations that wrote the Bill of Rights and the 14th Amendment did not (see) freedom in all its dimensions. So they entrusted to future generations a charter in the Constitution protecting the rights of all Americans to liberty, as we learn its meaning.”

By contrast, Berman said, Scalia took a typically strict constructionist view and wrote “that when the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That was all that was needed. So for him, the question goes no further than that.”

While the constitutionality of same-sex marriage is now “the law of the land,” Berman pointed out there will now likely follow a host of cases involving ancillary issues, including retirement benefits and the making of health decisions that different institutions will have to deal with in the wake of Obergefell.

“The response (to the ruling) has been generally, relatively smooth. A lot of people sort of saw the writing on the wall and expected this decision to come down the way it did. So it’s been a relatively smooth transition,” she said.

That is, “except in Texas,” where, she noted, state Attorney General Ken Paxton issued an opinion stating that government officials such as county clerks or their employees who have religious objections to same-sex marriage licenses could not be compelled to issue them. One county clerk has already resigned over the issue.

One CLE attendee asked Berman if the King decision upholding sex-sex marriages “reopens the issue of polygamy?” Berman noted that that issue has been raised by the dissenters in several of the cases involving gay rights.

“I think that the main distinction that I would draw and the reason that I think that it does not open that question is that just because something is a fundamental right doesn’t mean the government can’t regulate it. It just means that it has to have a sufficiently compelling reason,” she said, which the majority in Obergefell did not find with regard to same-sex marriage.

Regarding private individuals (such as florists who have religious objections to providing services for gay weddings), Berman said the ruling will have no impact.

Berman said that generally speaking, only a government official or employee can be found to have violated the Constitution. “So if an individual florist decides they don’t want to provide services for same-sex weddings, that is their personal business decision,” she said.

“When it comes to institutions that are either receiving government funding or receiving government benefits, the question becomes more complicated,” Berman said, noting the example of Bob Jones University losing its tax-exempt status because of its policy prohibiting interracial dating.

“That’s probably another set of battles that we’ll see on the horizon,” she said, as many states are likely to begin enacting laws that carve out religion-based exemptions for many aspects of marriage equality.

Turning to the “Obamacare” case, King v. Burwell, two UHLC professors with extensive backgrounds in health care and insurance law weighed in on the decision, which turned on certain wording in the massive ACA legislation that on its face seemed to indicate that only the states, and not the federal government, could administer the reform’s health insurance exchanges.

The stakes in this case were very significant. In about two-thirds of the states, including Texas, these exchanges are operated by the federal government,” said Professor Jessica Mantel. Before coming to UHLC, Mantel served as a staff attorney with the U.S. Department of Health and Human Services where she helped draft some of the provisions of the ACA.

In the majority opinion holding for the Obama Administration, Mantel said, Chief Justice Roberts spent very little time addressing the issue of whether the court could find that it had the authority to determine whether the disputed language in the ACA was so badly worded that it went against the core goal of the statute – reducing the number of uninsured Americans.

“The majority said we don’t read statutory language in isolation.  We read statutory language in context. We look at other provisions of the statute, and we look at the statutory purpose. That means that language that on its face might seem clear would become ambiguous when you look at the broader context. And the majority said this is one of those cases,” she said.

Mantel said the majority found that the effect of adhering strictly to the language on its face would have eliminated tax credits to people who live in states where the exchanges are run by the federal government and created a “so-called death spiral” that would destabilize the insurance markets in those states. That’s something the majority believed Congress clearly didn’t intend, she said.

“I think the majority’s approach here is acknowledging that the process of drafting legislation is often an imperfect one,” she said, pointing to her own experiences in drafting and reviewing provisions in often-voluminous federal legislation.

“I think the court was acknowledging this reality and saying we’re not going to follow this really rigid approach to interpreting statutes. We’re not going to allow sloppy drafting to trump what Congress meant, when from the context and looking at the broader statutory purpose, we know what Congress meant. And to do otherwise would frustrate the fundamental democratic principle of self-governance through our elected representatives,” she said.

Professor Seth Chandler, a noted scholar of insurance law who testified before Congress on the ACA the day before the King decision was handed down, said the ruling’s greatest jurisprudential importance probably lies not in interpreting the ACA, but rather in statutory interpretation more generally.”

Instead of determining that the ACA was ambiguously written and therefore subject to reasonable interpretation by the executive branch (under an often-cited precedential concept called “Chevron deference”), Chandler said, the court made the key issue in the case one of Congressional intent in drafting and passing the statute.

“What we don’t know yet is whether this is some one-off standard that will never be met again,” Chandler said. “How often, after all, does Congress assign an agency [the Internal Revenue Service] rule-making authority in which that agency has no background? How often will a case truly be central to a landmark piece of legislation affecting one-sixth of the economy?”

But, Chandler said, the King case might well become as significant as the Chevron decision, especially with respect to statutory interpretation.

“As (Mantel) pointed out, King acknowledges that legislation is frankly often sausage, full of process errors, incoherence, human error,” Chandler said. “And too often, we attribute false meaning to accident.”

Chandler said pointing this out doesn’t necessarily move legislatures to “clean up their drafting act” in drafting statutes.

“Instead, the Roberts opinion proceeds that courts should combine statutory language and some background in economic reality to attempt to divine broader purposes of the legislation,” he said.

Chandler said that despite two decisions by the court upholding the ACA, there is still one pending case in federal district court that “has the potential to wound Obamacare greatly.”

That case is House of Representatives v. Burwell, in which the Republican leadership of the House sued over a provision of the law that allows the administration to pay subsidies that convert “silver” policies for lower-income purchasers into the more generous “gold” and “platinum” plans.

“The basic issue in this case arises from the fact that Congress never actually appropriated any money to pay for the cost-sharing subsidies contained in the ACA,” Chandler said. But the administration is paying insurance companies for the subsidies out of an account dedicated for tax refunds for taxpayers, he said.

“And so, under various federal provisions, those making the payments could actually be criminally liable. And by the way, won’t that be a fun action for President (Ted) Cruz’s attorney general to pursue against members of the Obama Administration?” Chandler joked.

Chandler said the administration’s defense may in fact hinge on the King decision.

“The idea is that without these cost-sharing subsidies, the policies would be less attractive, and at least one King-approved purpose of the ACA would be in jeopardy,” Chandler said. “Would Congress really have intended to pass a statute, I can hear some lawyer challenging Roberts’ King opinion saying, that so impinged on a central goal?”

But despite all this, Chandler said, there is another reason the House of Representative suit might not have legs.

“Usually, the remedy for the House of Representatives not liking a law is to not pass the law.  And so there’s a serious question as to whether this case belongs in court,” he said.

Professor Peter Linzer provided a broader overview of the entire Supreme Court term, including several decisions that specifically affected Texas.

Regarding the Obergefell majority opinion authored by Justice Kennedy, Linzer said, “I don’t know any other Supreme Court decision that I’ve read that uses the word ‘love’.”

Linzer said the dissenters in the decision didn’t say Kennedy was wrong about the vast importance of marriage to gay individuals. “Justice Scalia just said, ‘I don’t care,’ ” he said.

Rather, he said, the dissenters said the issue of marriage equality should be left to the democratic process, not the judiciary.

“The (majority’s) argument is that something as basic as the right to be with somebody else for the rest of your life shouldn’t be at the grace of other people,” Linzer said.

Linzer addressed the opinion issued by Texas Attorney General Ted Paxton stating that county clerks or their employees who have religious objections could decline to issue marriage licenses for same-sex marriage.

He said the actual opinion differed from a press release Paxton issued concurrently, which caused confusion. Linzer said in the official opinion, Paxton said clerks could make reasonable accommodations for employees with religious objections.

“This thing was a lot of hogwash, as far as I’m concerned,” Linzer said.

Linzer talked about speculation that the Supreme Court, under conservative Chief Justice Roberts, has apparently drifted to the left of the political spectrum.

“I’m skeptical about this,” he said. Linzer said the liberal justices have of late shown more cohesion, voting as a bloc, while the conservatives have become more splintered on many cases.

“We’re seeing a little bit of people breaking ranks, which is to the good,” he said. “We’re not talking about the Super Bowl.”

On Tuesday, July 28, the UH Law Center will present a second CLE on the recent Supreme Court term, which will look at cases involving environmental regulation, low-income housing and redistricting. Find more information about the CLE and how to register here.

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