Posted By matt on July 16, 2015
So here is the list of decisions this year, and I’m commenting on those from 25 June and 26 June.
To my thinking, this is a step in the right direction, but doesn’t go far enough. At the core, how people set up their domestic arrangements should not be the business of the government period, excepting perhaps the registration of the contract to be held in escrow by a neutral party in the case of dispute later on – though I note that said neutral party doesn’t necessarily need to be a governmental institution. But, you sign the contract, you have some witnesses and everyone recognizes it.
As an aside, a dear friend of mine and I were discussing this and he felt that my view was a bit too unemotional. I recall what someone said to me when I was in uni, namely that his SCA marriage meant more to him than his civil one. Why? The SCA was his tribe, his community, and his marriage was
Now, there are a pile of objections to this from the broader social perspective, and I shall attempt to briefly refute them, point by point:
But the above would allow people to have multiple spouses?
- So? Not the function of government to restrict people’s private affairs.
But all our law (health care, property, etc.) is based around 2 person marriage?
- I’m pretty sure the smart actuaries can figure out how to charge more based on more people in your family, or figure out how to divide your assets by a number > 2 upon dissolution of the contract.
But the global homosexual conspiracy will force religious institutions to perform marriages!
- Yeah, maybe, but I would oppose that. Of course, I also oppose requirements that folks need to service all customers equally, because it violates the principle of universality. (In brief – if a white supremacist doesn’t want to patronize a black-owned business, that’s okay, but if a white supremacist doesn’t want to rent to a black tenant, that is illegal, because the landlord is providing a public accommodation. I disagree with this distinction. No one should be forced into economic transactions. As an aside, they will pay the market price for their bigotry because they will lose customers, especially if their racism comes to light and they are shunned by the community.. or, they won’t, because people agree with them (see Chick-fil-A Appreciation Day.
It shouldn’t be called “marriage”, it should be called something else.
- You can call it whatever you like, but it needs to be the same for everyone otherwise you risk creating a double standard and violating equal protection under the law. I mean, if you want to call the filed contract your “domestic contract” and “marriage” is whatever happens in front of your community and the government doesn’t care, that’s fine, but there should be no official distinction between them. Given all that, just call it all marriage and be done with it.
Let’s call it ‘traditional marriage’ then.
From the court perspective, Roberts’ dissent is notable here. He states (among other things)
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.
Last time I checked, having everyone be treated the same under the law was good for people and society, but let’s just put the above aside for now, and get on with the next one.
First, let me be clear and state that I do not hate Obamacare for the same reason that a lot of other people do. I think that the health care system in this country is broken, and I appreciate that this was at least an attempt to fix it (at least, theoretically). A lot of things are steps in the right direction. The idea of having a health insurance marketplace is a good one, but I think it would have worked out better if it evolved from a competitive economy rather than inept central planning. However, it takes the major step of allowing for a marketplace which was previously illegal. Now, if we can only shake off the yoke of health care being supplied by employers for about half of workers (most easily accomplished by removing tax breaks), and get those folks on to exchanges (so health care isn’t tied to employment) while also allowing for broader competition across state lines, we’d be headed nicely down the road to real reform. (I’m not going to touch on what policies I’d like to see offered here).
No, the main issue I have with this decision is that it essentially justifies itself by saying that the decision was “inartfully drafted”. Or, more plainly, that congress couldn’t make their meaning clear. If that is true, then that basically comes down to a fundamental problem, namely, that they suck at their jobs. I mean, Congress’s core mission is to draft and pass legislation. If that legislation is not clear, then they are bad at what they do.
Given their abysmal approval ratings, it seems that the public may realize this as well.
I also have problems with Roberts’ decision in that it seems inconsistent with the previous. I mean, for the second time in a row, he says that it’s totally okay to say “well, even though that’s not what they wrote, it’s an oops, and they meant to do this other thing” for Obamacare, but then comes down and says that “the point of due process isn’t to let everyone consume government services (in this case, registering marriages)”. Really? Not contradictory at all? I mean, I may disagree with many of the other members of the court, but at least their positions are consistent amongst each other.
Now, I would not be surprised if it’s not inartfully drafted, but rather that they put in that “established by the States” wording to try and get the states to actually establish their own exchanges. They just were surprised by how many states punted to the federal exchange, and now need to regroup lest it all fall apart without the subsidies.
I’m also concerned that this whole scheme will fail (likely because it doesn’t take the reform far enough) and everyone will shrug and say “see, a free market doesn’t work!” (as if the health insurance market is actually free) and we’ll be saddled with government one-size-fits-all health care.
If anyone wants me to whiteboard how I’d reform the system, I’d be happy to, but I won’t do so now.