Monday, June 29, 2015

Supreme Court Decisions


I was out of town last week and deliberately out of reach of TV and newspapers but it was still impossible to notice the monumental Supreme Court decisions that were handed down at the end of the week on Federal Health care subsidies and gay marriage. Much has been written about these issues and the newspapers and commentators will have a field day in the weeks to come.

To my mind, the most telling observation came in an opinion expressed weeks before by a legal scholar on the gay marriage case. The June/July issue of First Things noticed the words of Edward Whelan, President of the Ethics and Public Policy organization, who said that “he hasn’t given much attention to the briefs submitted, nor does he plan to follow the oral arguments, ‘because there is little basis to believe that these cases will be decided on legal reasoning’. As Justice Ginsberg said in so many words in a February interview, Americans are ready for gay marriage, so we’ll give it to them. Legal ‘reasoning’ to follow.

It now seems obvious that the justices voting in the majority in both cases went through legal hoops trying to concoct a legal reason for their decisions. All the testimony and legal arguments were just words. As some have already pointed out, the Supreme Court has increasingly acted not as a check and balance on the authority of the Executive branch, or the incompetence of the Legislative branch, but has now become a kind of nanny who corrects and smooths over their mistakes.

Nevertheless, there is one law that the Supreme Court cannot mess around with, and that is the law of unintended consequences. In the case of the Affordable Care Act (ACA) or Obamacare chief Justice Roberts has taken it upon himself to bail out the President’s pet program on two separate occasions. Now no one can say that it won’t get a chance to succeed on purely legal grounds. It was a hastily conceived law passed with an extraordinary degree of legislative chicanery. But this is all water over the dam. Now we will see if the ACA can actually work. Already it appears that even with subsidies from a government that is trillions of dollars in debt, costs are rising dramatically.

In the case of gay marriage I think that it can be argued that the State has always supported and encouraged citizens to marry for a variety of good reasons. One of these reasons is that Society benefits when people make a commitment to one another, a commitment that has legal status and that cannot be disregarded without serious legal and economic consequences.

In my experience as a former financial advisor I found that the best thing a couple could do financially was to marry. However, divorce was usually a financial disaster. For people to marry and stay married, despite the responsibilities involved, was often the key to success. Today, it would appear that many people are afraid of commitment and responsibility. Is this the reason why marriage has become increasingly unpopular with heterosexuals?

While an increasing number of heterosexuals seem uninterested in the benefits of marriage, homosexuals clamor for the right. Homosexuals, whatever the law says, will not be immune to the trials and tribulations of marriage. Now, when things don’t go well, they will not be able to walk away and leave their partner in the lurch. The right to marry is also in this country going to involve the legal consequences of divorce when things go bad.



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