Month: June 2015


Supreme Court decision is that gay marriage is required by the Constitution

By Sam Ventola,

In a 5-4 decision today in Obergefell v. Hodges, supreme-court-546279_960_720(with Scalia, Thomas, Alito and Roberts dissenting), the Supreme Court held that the 14th Amendment’s equal protection clause requires States to recognize gay marriage. The decision is somewhat unusual in that it does not clearly rely on a “level of scrutiny” test as most equal protection cases do. Instead, the majority states that marriage is such an important and fundamental right, it cannot be denied to same sex couples.

One issue with the case is that its reasoning is quite broad, and therefore arguably implies the necessity of recognition of others’ efforts to get marriages, such as those wishing to engage in plural marriages or who are too closely related under State law. It remains to be seen whether the Justices in the majority would apply the same reasoning in those cases, or whether they would simply decide which relationships they deem to be acceptable on a case by case basis.

The result in the decision was widely anticipated, and already possible legislative responses are being considered. One possibility is that a State could simply eliminate “marriage” and create civil unions for any two – or even more – people who wish to commit to each other legally and financially. This could include siblings, a parent and an adult child, etc.

Also, it is important to note that this decision does not affect the First Amendment right of a minister or church to continue to decline to participate in gay marriages. The First Amendment preserves the rights of a religion to preserve its own doctrine and set its own parameters of what is a proper marriage. Although some service providers such as bakers and photographers have been required to participate in gay marriages, this would not be extended to ministers, churches, or anyone who would be required to engage in expression on behalf of the marriage.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court Hands Down Decision Upholding Obamacare – Do the laws mean what they say or what we think they should mean?

By Sam Ventola,

young-woman-bored-11281332030yRqtToday in its decision in King v. Burwell, the US Supreme Court, by a 6-3 vote, interpreted the Affordable Care Act (“Obamacare”) in the manner requested by the Obama administration. Specifically, the Court held that tax credits are available for people who bought health policies on the federal exchange, even though the actual terms of the statute limited those credits to those who bought policies on exchanges “created by a State.” The decision did not directly affect Colorado residents because Colorado had established a State exchange.

However, people in 34 other states would have lost any tax credit – and the elimination of tax credits would have imperiled the entire Obamacare system. The Supreme Court acted to avoid these results by interpreting the Act to allow the credits even to people who did not buy on State exchanges.

The decision brings to the fore the central tension in American judicial philosophy – should judges interpret statutes (and the Constitution) strictly as written, or should they try to advance policies the judges believe should be promoted? Although our first impulse may be that we think judges should try to reach the best result, the implication of this view is that we place judges in the position of unelected “Philosopher Kings” who dictate policies they think best, even though the laws may say otherwise. The three dissenting judges (Scalia, Thomas, and Alito) contend that a judge’s role in a Constitutional democracy must be limited to enforcing the laws as written. This is a tension which will continue to play out in judicial decisions.

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.