The Corner

Politics & Policy

What Does the King Decision Suggest for Same-Sex Marriage?

In response to The Reagan Movie, Ctd.

Wesley, your division of the Court into pro- and anti-Technocracy blocs is an interesting one, and it certainly is hard to imagine how today’s decision in King v. Burwell could have been reached based on what the law actually says. But there are several other possibilities: That Roberts favors low-impact rulings (instead of striking a blow against Obamacare, he’ll step aside and let it collapse from its own failings); that he and Kennedy are working to promote the Republican and/or conservative agenda (by sparing the GOP from having to vote against restoring Obamacare subsidies, a fight that would be hard to win); or that they are striving to maintain the appearance of impartiality (we’re not right-wing! look at Obamacare!).

All these hypotheses would suggest a ruling against making SSM mandatory. The low-impact approach on SSM is to avoid imposing it on states that don’t want it and let the current wave, running strongly in favor of SSM, play out. (This would also avoid the possibility of side effects like religious groups’ losing their tax-exempt status, which would hardly be low-impact.) Punting to the states would also spare Republican candidates and members of Congress from having to denounce the Court for imposing SSM (which is not the same as denouncing SSM, but no one would pay attention to that). And it would let Kennedy once again be Mr. Down-the-Middle, as happened with Obamacare, which he voted against in 2012 and in favor of today; on SSM, he would have voted to strike down DOMA but also to leave the state option intact.

I guess we’ll know in a few days which one of us is right, but my guess is that the Court will leave SSM in the hands of the states.

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