Bo Statham: Supreme Court got it right twice last week

The United States Supreme Court rendered two momentous decisions last week. In this writer’s opinion, the Court reached the correct judgment in upholding a key provision of the Patient Protection and Affordable Care Act (ACA, often called Obamacare) and in declaring that same-sex couples have a constitutional right to marry.

The dissenting justices would have effectively killed a national program that is achieving significant success improving the delivery of health care and left unsettled a fundamental issue of social justice in our nation. Regrettably, those dissenting members of the Court, particularly Justice Antonin Scalia, wrote unusually condescending, ridiculing and vitriolic opinions that are shameful and below the dignity of the highest court of the land.

The case upholding the ACA involves a question of statutory interpretation, not constitutional law. Chief Justice John Roberts, citing numerous precedents and authorities, found a key and seemingly clear provision “is properly viewed as ambiguous.” Writing for himself and five other justices in a somewhat strained and esoteric, but defensible, argument, the Chief Justice once again saved the ACA (having written a similar opinion in 2012).

Justice Scalia, joined by Justices Thomas and Alito, issued an excoriating dissent. Describing the majority opinion with such phrases as “quite absurd,” “no semblance of shame,” “interpretive jiggery-pokery” and “Pure applesauce,” Justice Scalia concluded the Supreme Court “favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

In an expansive, eloquent and passionate theme on the institution of marriage, Justice Anthony Kennedy laid the predicate for finding that states can no longer limit marriage to a union of one man and one woman. Acknowledging the age-old religious foundation of that definition of marriage, the opinion states “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone.” It then relies on the Fourteenth Amendment’s due process clause guaranteeing liberty and the equal protection of the law clause to hold that same-sex couples have a constitutional right to marry that cannot be denied by the states.

The opinion recites the demeaning treatment endured by gays and lesbians as being immoral, illegal and criminal; homosexuality as being an illness or mental disorder; and being barred from military service, excluded under immigration laws, targeted by police and burdened in their right to associate. Critically, the opinion also cites prior Supreme Court decisions chipping away at such injustices, including striking down laws prohibiting marriage between people of different races and criminalizing intimacy between same-sex individuals, and declaring a key section of the federal Defense of Marriage Act unconstitutional.

Dissenting opinions of Chief Justice Roberts and Justices Scalia, Thomas and Alito viscously attack the majority opinion on three grounds: the Court should have allowed state legislatures and courts to continue “the democratic process” on the issue of same-sex marriage, same-sex marriage is not a fundamental liberty protected by the Fourteenth Amendment and “the fundamental right to marry does not include a right to make a State change its definition of marriage.”

To such legal gymnastics, the majority opinion answers: “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”

It is confounding that the dissenting justices belittle the judiciary, ignore the Supremacy clause of the Constitution, severely limit the Court’s authority to interpret Fourteenth Amendment protections, and yield liberty to religious doctrine.

The dissenting justices have had no problem distorting and demeaning the First Amendment by holding that money is speech, that corporations are people and have religious beliefs superior to certain women’s rights, and that big business can spend unlimited and unreported amounts of money to corrupt the political process.

Justice Scalia derisively associated the authors of the majority opinion to mummers (i.e., actors, mimes) and declared “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” To which this writer says, Justice Scalia does not deserve to be a member of that committee.

Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at


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