Wednesday, March 27, 2013

SCOTUS Predictions and Same-Sex Marriage

Yesterday the Supreme Court of the United States (SCOTUS) heard arguments regarding California's Proposition 8 (the amendment to the state constitution that made same-sex marriages illegal in California).  Today the Court heard arguments on the constitutionality of one portion of the federal Defense of Marriage Act (DOMA).  Lots of Internet discussion about what all the questions and comments asked/made by the justices meant.  I see the problem somewhat differently than most of what I've read: in some fashion, Chief Justice Roberts needs to find a majority (or majorities) that will produce coherent consistent decisions about three things: DOMA, Prop 8, and the fact that several states have now passed laws allowing same-sex marriage.  The last one wasn't argued in either of this week's cases, but it's still a pretty big elephant in the room.

To start, why do I think the burden is on Roberts?  My perception is that he is desperate to avoid going down in history as the Chief Justice under whom the SCOTUS became a blatantly partisan beast.  He voted with the four liberal justices for a strained compromise over the Patient Protection and Affordable Care Act (PPACA) last year.  I also have another opinion about the Chief Justice: whatever the decision, he wants it to benefit big corporations.  The PPACA decision certainly seems to provide benefits to large business interests.  Big insurance gets millions of new policy holders.  Big hospitals get reimbursed for what has been until now charity care (the remaining states will come around on the Medicaid expansion when the hospitals lean on the governors and legislators hard enough).  More insured patients has to be good for big pharma.  And it is at least the beginning of the light at the end of the tunnel for employers no longer having to provide employees with subsidized access to group health plans.

So, where does the large corporate interest lie in same-sex marriage?  The only one that comes immediately to mind is consistency in treatment of marriage from a benefits perspective.  As part of a corporate acquisition, I retired from a large company for which I had never actually worked.  That company acquired, along with the instantly-retired me, legal obligations to provide a variety of retiree benefits to me [1].  These obligations are quite different than those the company provides to its own long-term employees who retire.  Human resources absolutely hates the small group of us who receive special treatment [2].

If that's the corporate interest, then the outcome will be Roberts and the four liberal justices ruling in the two cases that the 14th Amendment's equal protection clause makes it improper to treat same-sex couples any differently than different-sex couples with respect to civil issues.  The federal government, state governments, and employers will be required to recognize same-sex couples as "married" couples.  Can't leave the decisions up to the states if the goal is HR consistency; and probably can't outright ban same-sex marriages because of the partisan thing. Religious organizations will be allowed to pick and choose the couples for whom they will perform a ceremony (as they do today), but will be stuck with the same kind of situation they're struggling through over abortion and birth control when they act as an employer in the civil sense.

The other four justices will just be stuck writing whiny dissents.

[1] As an aside, most of those obligations had followed me through three previous corporate reorganizations.  The original plan terms were broadly set by a company that had long since ceased to exist.  A few other things had been tacked on as the plan and I (and the people in the same situation) moved along.  Most of those add-ons were attempts to make retirement attractive enough that we would take it.

[2] Hate as an organizational thing.  The human-resource representatives with whom I have interacted over the last decade have been uniformly courteous and helpful.  It's just that instead of being able to be helpful immediately, it sometimes takes several days because they have to go research if and how my special status changes the normal answer.  Even longer if they have to go get an opinion from the legal staff.

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