Dear Dahlia, Mark, Marty, Kenji, and Judge Posner,
Dahlia, this is the 14th year that you and I have been writing about the Supreme Court at the end of the term. We started out alone, but as the Supreme Court’s role in American life has grown ever more outsized, you have wisely expanded this Greek chorus of commentators. What a pleasure it will be to hear from your Slate colleague Mark Joseph Stern, professor Martin Lederman of Georgetown Law, professor Kenji Yoshino of New York University School of Law, and our distinguished Judge Richard Posner of the University of Chicago Law School and the U.S. Court of Appeals. There will be a lot to discuss as the Supreme Court hands down its final decisions—it appears that Thursday, Friday, and Monday will be the decision days for the remaining seven cases.
If anything, the potential effects of the two most noted of the remaining cases—King v. Burwell (Obamacare subsidies) and Obergefell v. Hodges (marriage equality)—have been understated. My guess is that the court will hold that tax subsidies are available in every state and that marriage by same-sex couples is a national right. But for now, I want to consider how consequential it would be if I’m wrong and the court rejects both a national right to gay marriage and nationwide health insurance subsidies.
A “conservative” result in those two cases would turn our present gap between blue states and red states into a chasm. The effect would be extraordinary. Citizens in blue states (more or less) would continue to have a major federal income tax subsidy, a functioning health insurance market, and critical revenues to support hospitals and health care providers. Red state citizens would be denied this federal tax break, their health insurance market would become dysfunctional, and health care services would be placed under enormous stress. Add to that a decision leaving gay marriage to the states, and you have a country in which no Fortune 500 company is likely ever to locate a new plant in any red state that continues to prohibit gay marriage.
Far more states are implicated in the gay marriage cases pending before the court than many people realize. Thirty-seven states and the District of Columbia now permit gay marriage, a fact that might suggest that all that is at stake is whether the remaining 13 states will be required to grant marriage equality. That is wrong. Only 11 states have chosen without litigation to permit marriage by gay couples, eight by state legislation, and three by referendum. In a few other states—Massachusetts and Iowa, for example—gay marriage is available because of judicial decisions based on the state constitution, and marriage equality would continue to be available in those few states, regardless of the Supreme Court’s holding.
In the numerous remaining states, the availability of gay marriage is arguably in play before the court. This much is clear: Regardless of the Supreme Court’s decision, marriage equality will continue to exist in these 16 states: Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New Jersey, New York, Rhode Island, Vermont, and Washington (along with the District of Columbia).
But that leaves a substantial majority of the states—perhaps 34—without current protection for marriage equality other than the U.S. constitutional provisions whose proper interpretation is at issue before the Supreme Court this week. What would happen in those states in the aftermath of a decision adverse to gay rights is unclear. In some, no doubt, political officials would move quickly once again to limit marriage to opposite-sex couples. In a large number of states, gay marriage would become an explosive political issue, one that often could not be resolved in a single legislative session. Some states would require an amendment to the state constitution to bring equality to marriage, meaning the process could take years. Blue states everywhere will soon have gay marriage. But in red (and purple) states across the country, the gay marriage debate would roil politics for many elections to come.
One important note: I am convinced that those same-sex couples who have already been married will remain lawfully married, regardless of how the court rules. Wholly apart from technical constitutional and legal reliance interests, those cases should be governed as well by that most fundamental of principles: “What God has joined together, let no man put asunder.”
In the health care subsidy case, a possible red state–blue state divide also awaits.
If the Obama administration were to lose, Obamacare would nonetheless remain alive and well—but only for citizens in states that voted for Obama (more or less). Suppose the court were to hold that subsidies were available only to taxpayers living in states with state-created insurance exchanges. Friends in Congress doubt that any correction of this anomaly could pass the House, thus leaving the issue to the states. Most blue states have either created such exchanges or would soon do so. In red states, however, the political conflict would be fierce. The working-class families who depend on the subsidies (more than a million each in Florida and Texas, nearly a half-million in North Carolina, for example) would likely support a simple fix establishing a state exchange. Joining them would be most of the doctors, hospitals, and insurance companies in those states. So a simple bill creating a state exchange (still run by the Department of Health and Human Services) would pass, right? Not without a brutal battle within the Republican Party in those states, since many Tea Party adherents would consider any legislator who voted to facilitate “Kenyan socialist Obamacare” anathema forever. It would be a divisive political issue in most of the same states that would face conflict over gay marriage.
Losses for gay marriage and health insurance subsidies would push us toward becoming two nations: one blue and one red, with life in the red states made significantly more difficult by what would, ironically perhaps, be considered two “conservative” victories before the court.
I don’t think either of these nation-splitting decisions will emerge from the court. In the end, I hope and believe the court will hand down decisions that reflect that we are one nation with one Constitution. The right to marry the person you love and access to affordable health care should not be subject to the whims of local politics.