Posted by: captainfalcon | March 23, 2013

Obamacare and Same Sex Marriage

A common argument for the constitutionality of Obamacare under the Commerce Clause was that because, virtually everybody was going to require medical care at some point Congress wasn’t forcing people to enter the healthcare market (and its derivative health insurance market).  Instead, Congress was merely regulating the timing and manner of their payments for healthcare of which they would eventually partake.  Sure, some people — hermits, those who die suddenly, medical skeptics — would never enter the healthcare market, but the essence of a national legislature is that it has the power to solve national problems even when those problems don’t affect a few outliers.  (The hook on which this idea about the essence of national legislative power was hung is the line in Wickard v. Filburn about how Congress can reach activity that in aggregate substantially affects interstate commerce, but that hook should not be confused with the idea itself, which is an overwhelmingly plausible claim about national legislative power generally.)  Moreover, courts should defer to Congress because it is the branch with the democratic legitimacy and institutional competency to identify and develop solutions to national problems.

Now consider § 3 of DOMA, defining marriage as a union of one man and one woman.  Proponents say that this is a rational decision by Congress to incentivize stable procreative unions and thereby ensure that the population continues to grow and children continue to be raised by their parents.  Opponents argue that DOMA must be motivated by animus as opposed to an interest in incentivizing procreative unions in large part because DOMA’s definition of marriage covers non-procreative couples (those who are sterile, those who don’t’ want to have children, etc.).  Thus, DOMA plainly cannot be about incentivizing procreation and the raising of children by their parents — protecting heterosexual marriage is simply inapposite to that goal.

Doesn’t this argument against the constitutionality of DOMA run directly contrary to the principles underlying the argument in favor of the constitutionality of Obamacare with which this post began?  If Congress has the power to define and solve national problems without regard to whether there are outliers who won’t benefit from those solutions, then shouldn’t its definition of the problem of incentivizing procreation and its traditional marriage solution stand?  At the very least it should survive rational basis scrutiny, which is still the law under Lawrence v. Texas.

There is obviously one principled way out here — reject our ideology of liberal democratic proceduralism and form your own independent substantive judgment (the bleeding obvious) that the goods flowing from requiring the recognition of same sex marriage outweigh the (paranoiac’s) “risks” it poses, just like the goods flowing from requiring universal health insurance coverage outweigh the costs to liberty imposed by the individual mandate.  But I don’t see a way out from within the liberal democratic proceduralism that most proponents of Obamacare and opponents of DOMA purport to embrace.

Related see here.  I particularly recommend Eastman’s essay detailing the procedural abuses and doctrinal sleights of hand committed by proponents of same sex marriage.  I say hear, hear to them, but one can see how somebody who values unthinking adherence to the letter of the law in all circumstances would be distressed.



  1. Mmmm…that’s an interesting nugget to pick up on. It would have been equally amusing to see Eastman cite Obamacare when making the similar point.

    Speaking of Eastman’s essay, after reading it, I was struck by two things. One, at least if decided on strictly doctrinal issues, the chances of a split decision in the upcoming cases seem far lower than I previously thought. Secondly, assuming Eastman’s argument represents the cream of the crop of constitutional cases for marriage bans, the pro-DOMA/Prop 8 side is far weaker than I had previously thought, especially re: the Equal Protection Clause.

    It strikes me that it might not be surprising at all to see the Court rule against both statutes decisively.

  2. In what respects had you thought the argument, esp. re: the equal protection clause, was going to be stronger, and what aspects of Eastman’s strike you as so devastatingly weak? Be less oracular.

  3. I don’t know if I had any specific argument in mind. The conventional wisdom was that Prop 8 would be upheld, so I assumed that the SSM opponents had some knock-down argument to defend its constitutionality. Eastman’s argument in favor of there being a rational basis was a bit non sequitor (not sure how marriage being about protecting children gives one a rational basis to discriminate against gays).

    Now, anticipating your exasperation,, yes, I know this argument is made frequently. But it has always been somewhat silly, so I had assumed that the proponents had something more potent (and specific to the realm of constitutional law) to buttress their arguments.

    Perhaps this is just a sign that I bought too deeply into the meta-argument about process (that legislative remedies were preferable to judicial ones), that I presumed that there was an argument where someone who found the policy-relevant arguments against SSM could still conclude SSM was not required by the constitution. But if the constitutionality argument reduces to the policy argument, then the anti-SSM case is weaker than I thought (and a split decision less likely).

    Though SCOTUS blog seems to suggest that the Andrew outcome (find against Prop 8 on a technicality) is the most likely one.

  4. Ah gotcha. No exasperation, just curiosity. (Although I don’t think the general wisdom was that Prop 8 would be upheld though — my sense of the zeitgeist was that Prop 8 would fall, but the opinion would probably be narrowly drafted so as not to imply a categorical right to same-sex marriage.)

    I agree that there is no plausible connection between gay marriage and the dissolution of marriage as an institution among heterosexuals for purposes of raising children, and that Eastman’s argument in this regard is too summary to be persuasive. But two points:

    (1) I’m surprised that you find Eastman’s argument as shoddy as I do in light of your tentative endorsement of Ross Douthat’s post against SSM (albeit from three years’ ago):, which sounds in similar themes.

    (2) In fairness to Eastman, rational basis scrutiny, at least on its traditional formulation in Williamson v. Lee Optical, is a startlingly low threshold: a policy has a rational basis as long as their is some “conceivable reason” for Congress to have enacted it. So his argument doesn’t need to be particularly persuasive in order to show that prohibitions on gay marriage pass muster under the rational basis test (although the applicability of Williamson to the gay rights context has been called into question by Romer v. Evans and Lawrence v. Texas). Eastman rightly concedes that it’s a closer call if the court adopts the heightened scrutiny applied in Windsor.

  5. I guess the distinction between Eastman and Douthat was again that I expected the Constitutional argument against gay marriage to be more robust than the policy argument (which is Douthat’s point). Also, and it has been a couple of years, but I thought Douthat made a narrower point than Eastman, basically just simply the argument from uncertainty (marriage is important and who knows how this will alter the norms associated with it) and largely avoided the “marriage is about procreation” deadend that Eastman (and Cooper) wandered themselves into.

    Finally, a point of clarification: I think a reasonable reading of my post would not suggest that I endorsed, however tentatively, Douthat’s argument, but that I found it simply cogent and worthwhile (which was notable because I had found very few anti-SSM arguments about which I could claim such).

  6. I’m not sure what you mean by the constitutional argument against gay marriage being “more robust” than the policy argument against it. If you mean you expected the constitutional argument to cite different (maybe more formalist) considerations than the policy argument then you’re just expressing disappointment in the shape of the constitutional law. Policy arguments in this arena are inescapable because the constitutional doctrine calls for them. Assuming the equal protection clause applies — I think it clearly does — the analysis requires assessing (1) the governmental interest at stake and (2) the relationship between the measure adopted and the promotion of that interest. If rational basis scrutiny applies then the governmental interest need only be “legitimate” and there need only be some “conceivable reason” why the measure adopted promotes that interest. If heightened (“intermediate”) scrutiny applies then the governmental interest need to “important” and there needs to be a, call it, “closer” fit between the measure adopted and the promotion of the interest. I can’t see a way to make an argument that fits this framework without basically recurring to policy along the lines of changing the definition of marriage threatens to cause harm to marriage.

    Also, I’m not sure that there’s much of a distinction between Douthat’s argument from general uncertainty and Cooper’s arguments that named some possible costs of changing the definition of marriage. Cooper expressed uncertainty about the consequences of extending marriage to gay couples, but did so by suggesting some of the possible ways in which that extension might (i.e. “could conceivably”) cause social problems. He speculated that if “redefining marriage” was going to cause social problems, it was going to cause them by having some kind of impact on the goods that flow from marriage — monogamy, raising children and family stability. This strikes me as unlikely, but if marriage is going to have a deleterious impact on society it’ll probably be in these areas. So I can’t see that Douthat’s keeping things general actually makes his argument better (although it may conceal how shoddy it is).

    Update: your point about how to interpret your Douthat post is well-taken.

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