Three rulings and the end of the world as we know it

previously published in the Terre Haute Tribune Star, 5 July 2015


Does the Supreme Court have a publicist?
                                                                                                                                                                                                                                                                                 




The three decisions delivered last week, one on the Affordable Care Act (ACA), one on the Fair Housing Act and then on marriage equality couldn’t have generated more buzz. Each one of these is worth its own essay but in the fast paced world of “news” three weeks from now no one will be focused on these so I’ll write a bit about each one here. Typically I prefer to write about people’s reactions to events. I’m going to deviate a bit and write my own impressions of these cases.

The 6-3 ruling on the ACA really shouldn’t have been a surprise. “Intent” is a major factor in conservative jurisprudence and the Supreme Court has five conservative justices (six really but no one likes to suggest Breyer is a conservative). As Chief Justice Roberts wrote for the majority, the intent of Congress was to improve insurance coverage, not wreck the markets, so the “inartful” language in that section of the law that King v. Burwell was based on makes no sense in the wider context of the law. Exactly.





Justice Scalia, however, saw it different and said what could be clearer than the clear language of the text. Yet, in Washington, D.C., et al v. Heller, Justice Scalia, writing for the majority, found an individual right to bear arms in the second amendment which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plain and simple reading of this notes the well regulated militia as the reason for the right of the people to keep and bear arms. Yet, Scalia’s opinion writes extensively about what the meanings of plain and simple terms meant “then” including a long discussion about rights not enumerated in the Constitution but that were already understood and then cited a raft of documents including English Common Law. Reading Scalia’s decision in Heller is one of the best examples of why “fundamentalism” is so wrong on its face. Yet, Justice Scalia seems less able to infer the intent of Congress from six years ago than he is the intent of the founders more than 200 years ago.





By upholding the use of statistical evidence of disparate impact in housing cases without the need to show discriminatory intent the Supreme Court allows us to hold our policies and our actions accountable even when our intentions are good. This is big because the Supreme Court in the early 1980s disallowed the same kind of analysis in employment discrimination cases.





Still, today, evidence of intent is necessary to prevail there. Perhaps time is ripe for a change in employment law, too. In any case, for those who point to “institutional discrimination” this is a big win because intent is not necessary when the practices or rules lead to discriminatory outcomes. Sometimes intent to do “good” is insufficient. We must look at outcomes of our practices. We are more residentially segregated today than we were in the 1950s. This causes all kinds of problems from inequality in schooling, to gerrymandered legislative districts, to an institutional barrier to wealth accumulation for minority peoples. Intent is subjective to determine, whereas outcomes are not.





The 5-4 ruling on marriage equality, no doubt, created the most furious responses. Suddenly the rainbow flag meme was everywhere.





The backlash began as well with such typically American extreme reactions as “the end of civilization was upon us.” This is similar to the response to Loving v. Virginia, the Supreme Court decision that legalized interracial marriage. The laws were defended eerily similar to how same-sex marriage has been justified: Religious grounds, a dubious claim to damaged children and a historical and factually inaccurate claims of the “natural order” and universal forms of marriage.





Does anyone really think that civilization has fallen apart since 1967? Yes, white supremacists do. Revisit Obergefell v. Hodges in 50 years and there will no doubt be other social issues that are front and center that threaten civilization as we know it having survived marriage equality; that is if climate change hasn’t ended civilization as we know it.

Many factors change the view of marriage

Previously published in the Terre Haute Tribune-Star, 27 January 2013

Does the spreading greater acceptance of same sex marriage suggest that marriage as an institution is “obsolete?”  It sounds contradictory to suggest such a thing.  Similar patterns, though, have been found in other areas where a majority group historically denied privileges it enjoys to a minority group.  For instance, as women made inroads into formerly male dominated occupations, research showed that men abandoned the same occupations that they once resisted women’s entry.  Similarly, whites abandon neighborhoods which then become integrated with minority residents.  In short, what sometimes looks like progress for minority groups may be a result of the majority group devaluing and abandoning what was previously vigorously defended and denied to the minority group.

Nine states and the District of Columbia have legalized same sex marriage.  Another 11 states have domestic partnership or civil union laws.  The rest (except New Mexico) have passed bans on same sex marriage.  There are initiatives in four more states to legalize either same sex marriage or civil unions and none currently to ban it.  The trend is undeniable.

The movement to find legal and institutional support for same sex marriage could be understood  to  validate the contemporary relevance of marriage in the US; however, research on marriage trends and attitudes (among presumably mostly heterosexual respondents) suggests something different.  In December 2011, Pew Charitable Trusts released a study, “Barely Half of U.S. Adults Are Married – A Record Low.” 

In 1960 72 percent of adult Americans were married; in 2010 only 51 percent were.   The report claims, if current trends continue, in a few years, less than half of American adults will be married.  America is not alone in these trends.  They are also found in other mature, post-industrial, advanced economies.  As American style individualism, especially consumer individualism spreads internationally, an institution perhaps increasingly viewed as at odds with individualism, might increasingly become irrelevant and to survive may have to change both legally and normatively.

In 1960, average age at first marriage was in the early 20s, now it is in the late 20s.  It is not likely that many wait for marriage to enjoy sex today as was more likely 50 years ago.  The impetuous and romantic teens and early 20 somethings of the 1960s have given way to a more mature and financially more independent set of partners marrying for the first time.

Two trends seem to be especially important.  The older age at first marriage, cited by Pew, and then another, cited in a study by Bowling Green University, “The Gray Divorce Revolution:  Rising Divorce Among Middle-aged and Older Adults, 1990-2009.”  While divorce rates have stabilized and even fallen, they have spiked among this age group.  These are marriages that have lasted 25+ years.  Qualitative research cited in the study indicates that many older couples who divorce simply have grown apart. “Life-long marriages are increasingly difficult to sustain in an era of individualism and lengthening life expectancies; older adults are more reluctant now to remain in empty shell marriages.”

In response to a question of whether marriage as an institution is obsolete, Pew found, that 39 percent said “yes.”  This compares to only 28 percent in the 1970s.  This view varied by education and age.  The more educated were less likely to see marriage as obsolete while those under 50, compared to those over fifty, were more likely to see marriage as obsolete, a difference of 10 percentage points.  Among the never married, 61 percent indicated they wanted to get married.  It does not appear that one’s view on the obsolescence of marriage affects the wish to marry.

Perhaps most telling is that 58 percent of unmarried parents and 62 percent of cohabiting parents agree that marriage is obsolete.  Marriage is our society’s primary mechanism for tying adult responsibility to children and clear majorities of unmarried parents respond that marriage is obsolete.  It would be interesting to see if heterosexuals in those states where same-sex marriage is legal differ in their views and experience of marriage and divorce from those in states who have banned same sex marriage.

For many years the cause of marriage equality, and backlashes to it, have played out.  The gay community (a minority community) organizes and pushes for access to an institution defended by the straight majority.  As victories mount for the cause of marriage equality, it may be those victories are aided because the straight community no longer views marriage the same, are devaluing it, thus less likely to defend its boundaries.