Off the Hook? by Linda Greenhouse
The Supreme Court Won’t End the Gay Marriage Debate for Republicans.
So the Republican establishment is breathing easy now that the Supreme Court is on the verge of issuing a ruling in favor of same-sex marriage, thus taking the question out of nasty old politics? “I think it’s probably going to be a relief,” a Republican committeeman from California told Jeremy W. Peters and Jonathan Martin of The New York Times, explaining that with such a ruling, “then it’s off the table.” Praise the Lord and thank the court.
You have to admire the chutzpah of party operatives whose national platform calls for limiting marriage to opposite-sex couples, and for whom denouncing “judicial activism” is usually as natural as saluting the flag, lining up right behind the justices who they hope will relieve them of the pesky problem of choosing sides in a fast-fading culture war.
But the Republicans’ sighs of relief are premature: not because the court will let them down by sending the marriage issue back to the states (of course it may, but I doubt it will), but because marriage equality isn’t the end of the story. It is only, to borrow from Winston Churchill, the end of the beginning.
Last April, the Supreme Court ducked a case that pitted the asserted right of a company — a New Mexico wedding photography shop — to refuse to provide its services to a same-sex couple against the couple’s right to be served like anyone else by a business licensed to open its doors to the public. The company, Elane Photography, had lost in the New Mexico Supreme Court. It brought a free-speech claim on appeal, arguing that its owner was being compelled by the state (New Mexico’s Human Rights Act covers sexual orientation) to use her “expressive” photographic talents in violation of her religious beliefs.
The justices turned the appeal down without comment or recorded dissent. But that doesn’t mean the court didn’t look closely at the case, Elane Photography v. Willock, which it took to its closed-door, justices-only conference for three consecutive weeks. And that case was just the leading edge of a pipeline’s worth of cases in which florists, bakers and owners of wedding venues are invoking claims of conscience to shield them from having to do business with gay men and lesbians.
If this issue appears less than earth-shattering — won’t there always be a friendlier florist, baker or hotel owner around the corner? — then try substituting “interracial couple” as the object of discrimination in the years after the Supreme Court, in Loving v. Virginia, struck down state prohibitions on interracial marriage. Of course, by 1967, when the court ruled in Loving, Congress had passed the Civil Rights Act of 1964, with its prohibition against racial discrimination in employment and public accommodations. (It took until 1983, in the Bob Jones case, for the court to rule that a university that claimed a religious basis for a ban on interracial dating among its students was therefore ineligible for tax-exempt status.) There is no federal anti-discrimination law that applies to sexual orientation, and 29 states lack such laws as well. . .
However the justices proceed to resolve the increasingly audacious claims of religious conscience in a post-Hobby Lobby, post-marriage equality world, it’s safe to predict that politicians will be confronting these issues under the glare of a public spotlight. Republicans who expect the Supreme Court to give them a pass from having to take a stand are in for a rude surprise.
The same might be said of the consequences for Republicans of prevailing in their latest attack on the Affordable Care Act. This spring, the Supreme Court will hear arguments in King v. Burwell, the cynical effort manufactured by right-wing think tanks to unravel the law (I’ve written about this case previously.) At stake is whether the insurance exchanges the federal government set up when 36 Republican-led states refused to set up their own will be dismantled, and whether the millions people who bought subsidized policies on the federal exchanges will have to look elsewhere or go without.
Leading Republicans, including Mitch McConnell, now the Senate majority leader, cheered when the court agreed to hear the case. But now some conservatives are getting cold feet at the prospect of actually winning. They are contemplating the morning-after question: now what? Suppose constituents who have paid no attention to the seemingly arcane issue in the case turn to their Republican governors and say something like: The Supreme Court says the law will work only with state exchanges, so why can’t we have a state exchange? In other words: Save our insurance.
http://www.nytimes.com/2015/01/22/opinion/the-supreme-court-wont-end-the-gay-marriage-debate-for-republicans.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region®ion=c-column-top-span-region&WT.nav=c-column-top-span-region
