Hollingsworth v. Perry Illuminated

The big legal story of the week is that the Supreme Court is hearing oral arguments in two cases regarding same-sex marriage. The first is Hollingsworth v. Perry, which concerns whether Proposition 8, a referendum to amend the Constitution of California to prohibit a person from marrying someone of his/her own sex, is valid under the United States constitution. The second, United States v. Windsor, concerns the constitutionality of Section 3 of the Defense of Marriage Act, which defines 'marriage' for the purposes of federal laws as 'only a legal union between one man and one woman as husband and wife'. This article will cover the former, seeking to explain the legal issues at stake in the case and how to begin thinking about the case.

Background
First, let's give the background to the case, in brief. In 2000, Proposition 22, a referendum put to the people of California, was passed with 61.4% of the vote. This proposition amended the state's Family Code to define marriage as 'a personal relation arising out of a civil contract between a man and a woman'.

In a series of cases in 2008, the California Supreme Court found that such legislation was invalid under the state Constitution. In short, the Court found that marriage was a fundamental right and could not be denied to persons on account of sexual orientation.

Since, as every good civic student knows, the only way to override a constitutional ruling is to change the constitution, opponents of same-sex marriage began to campaign for a constitutional amendment. This resulted in Proposition 8, which would amend the state constitution to include the following: 'Only marriage between a man and a woman is valid or recognized in California.' If Proposition 8 were successfully passed, it would effectively override the California Supreme Court's earlier ruling, once again invalidating same-sex marriage in the state. In November 2008, Proposition 8 was successfully passed with 52.2% of the vote.

Part of the peculiarity with Proposition 8 has to do with the process by which it came into effect. California, like some other western states, allows for a wide berth of issues to be decided via direct democracy — by the entire electorate, rather than by elected representatives — a legislative right of the people which was created during the roaring age of old-style progressivism in the 1910s. In California, if 8% of the electorate petitions the government to put a particular constitutional amendment to a vote, the government must do so. If that vote passes by a simple majority, the constitution is so amended. It's worth emphasizing that this is not the case in most states.

With the passage of Proposition 8, proponents of same-sex marriage had two choices: repeal Proposition 8 with their own ballot proposal; or literally make it a federal case. And so a law suit was filed in U.S. District Court against the State of California, claiming that the amendment was unconstitutional under the United States Constitution. After several years of navigating the appeals process, this is the case that is currently before the United States Supreme Court.

One note of important terminology: in this case, the proponents of Proposition 8 are called both the defendants and the petitioners. The former term is because they were the defendants in the original law suit; the latter because they were the party to petition the Supreme Court to hear the case. The opponents of Proposition 8 are called both the plaintiffs and the respondents, for the opposite reasons.

Oral Argument
With that, we enter into the oral argument. There is much more that could be said about the background of the case, but we will discover and discuss those issues as they arise in the argument.

The form of this post will be something of a medieval-style illumination of the oral argument which was heard earlier this week. I will use what the Justices and attorneys actually said in oral argument to work our way through the key points of the case. With any luck, this will allow us to identify all of the things that matter in this case, while also allowing you, the reader, to follow along with the oral argument, should you so wish. But I've hopefully constructed this article to not require you to listen/read along. We'll see how successful I was with that...

First a word on oral argument, what it is, and what it isn't. Oral argument is first and foremost a supplementary element of a Supreme Court case. Before oral argument commences, both parties have already filed briefs which detail their entire argument in writing. In addition to the two parties actually involved in the case, third parties may also file briefs with the Court to argue, on behalf of their interests, for one side of the other. These are called amici curiae: 'friends of the court'. In this case one such amicus curiae, on behalf of the respondents, is the United States Government.

And so oral argument acts as a way for the Justices to question both parties about the arguments they make in their briefs: to clarify unclear arguments; to propose hypotheticals; to challenge assumptions; &c. One might think of it as akin to defending a doctoral thesis. But the key point here is to remember that the case is not decided in oral argument. A bad oral argument, though it may hurt, won't lose you the case; and a good one, though it may help, won't win you one. It is more often decided in the written briefs and in the Justices' own legal research.

You can find both an audio recording and a transcript of oral argument here, if you would like to follow along, line by line. With that, here we go!

ROBERTS: Maybe it'd be best if you could begin with the standing issue.
First thing to note here is that right away, before the attorney for the petitioners (i.e., proponents of Proposition 8) is even able to finish his first sentence, Chief Justice Roberts interrupts him with a question of legal procedure. We are immediately reminded that this is indeed a legal proceeding. I mention this to point out a distinction from a political proceeding.

One of the problems with the discourse surrounding this case is that it treats a legal question as if it were a political question. The question before the Court is not whether same-sex marriage should be a constitutional right, but whether same-sex marriage is a constitutional right. Though the Justices' legal philosophies will lead them in different directions on this point, it is vital to recognize that they all recognize their role as one constrained by the law, as it is. Sometimes it is difficult to distinguish politics and law, as they often overlap, but they are indeed separate disciplines.

That said, you want to skip the comments regarding standing and continue on to the merits of the case, you can skip the next two headings.

GINSBURG: Have we ever granted standing to proponents of ballot initiatives?
Justice Ginsburg's question introduces the procedural question to which Roberts referred to. I don't want to spend too much time on the procedural question, since it is probably not of general interest to non-lawyers, but it is an important one. So I will treat it here briefly.

One of the requirements to bring a lawsuit or defend against a lawsuit in federal court is that the party must have 'standing'. That is, they must have some legal interest in the case, such as being adversely affected by the legal action. For example, if my neighbor slips and falls on the steps in front of her building, bringing injury upon herself, I cannot bring a lawsuit against her landlord on her behalf, because I have not been affected by the injury. She may bring a lawsuit against her landlord, since she has been injured. Likewise, the landlord's best friend cannot act as a defendant in such a lawsuit because he is not directly affected by the action.

All of this matters because the original lawsuit was brought against the state of California. The state was the correct defendant, since the lawsuit sought to challenge a law of the state, namely Proposition 8. But both the Attorney General of California and the Governor (Jerry Brown and Arnold Schwarzenegger) declined to defend the case. When Brown was elected Governor, he continued to refuse to defend the case, as did his Attorney General, Kamala Harris. Without a defense, the plaintiffs would prevail by default.

Fortunately for the proponents of Proposition 8, however, the Constitution of California provides that if the State declines to defend a ballot initiative, the official proponents of the initiative may defend against the law suit.

Ginsburg is right to ask her question, however, because the case is now in federal court, and the Constitution of California can be trumped by the Constitution of the United States when it comes to whether a party has standing in the federal court system. Her question is asking the petitioners to defend their claim that they have proper standing in the case.

SCALIA: I guess the attorney general of this State doesn't have any proprietary interest either, does he?
Scalia's question — a typically leading one — is spot-on and addresses the heart of the standing issue. As he points out, the attorney general would not ordinarily have standing to defend against the lawsuit: there is no potential injury to him regardless of the outcome of the case. But because the law of California entrusts to him the duty to defend such law suits, he may. And this is a legislatively created definition of standing that the federal court system has legitimated.

The ensuing discussion starts to play this out. If the law can assign a right to defend against such a law suit to the attorney general, can it assign that right to anyone? What are the limits of such an assignation? Can it grant it to any citizen it wishes, or must there be some sort of existing relationship between the law suit and the party to which that right is assigned? Remember, this all matters because the federal courts only have the power to decide cases where both parties have legal standing.

If the Court were to decide that the petitioners — the proponents of Proposition 8 — do not have standing, then the Court would not be able to decide the case, and the case would possibly default in favor of the plaintiffs — the opponents of Proposition 8. It would not be unheard of for the Supreme Court to decide a potential landmark case on a legal technicality.

Suffice it to say that the conversation does continue for a good 10 minutes, as the Justices and the attorney for the petitioners discuss legal hypotheticals. But since this isn't the main focus of this article, I'll leave it at that and move on to the merits.

COOPER: The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States.
Here Cooper, attorney for the petitioners, identifies for us that what is at stake is a legal question. The question is not politically whether same-sex marriage ought to be legalized, but whether the law of the Constitution prevents the government from choosing to prohibit same-sex marriage. The question is whether the Constitution limits the powers of state governments to exclude such a decision. In short, has the Constitution already made this decision for the states?

KENNEDY: Do you believe this can be treated as a gender-based classification?
Here Kennedy introduces us to the nitty-gritty of the legal question, which is going to require some background explanation about how constitutional law works with discrimination. To begin with, we should state that the plaintiffs in this case are claiming that Proposition 8 is a violation of the Equal Protection Clause of the 14th Amendment. That clause reads, 'nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.' This is the clause in the Constitution that, for example, bars the segregation of schools. Perhaps most importantly for this case, it is also the clause with which the Court declared in Loving v. Virginia that laws prohibiting inter-racial marriage were unconstitutional.

So the basic idea of the Equal Protection Clause is that states must treat like things alike, such that they are all treated equally under the law. But like any element of constitutional law, things are never quite that simple. After all, there are certain times when states should be allowed to treat like things differently. For example, even though doctors and dentists are two very similar classes of people, there are differences, and based on those differences, the two professions are regulated differently by states. They are not treated equally by the law. Likewise, I and my doctor are very much identical, but he and I are treated differently by the law for certain purposes. Thus the question is, when can the law discriminate, and when can it not? How should a court scrutinize a law to determine whether a legal discrimination is legitimate or not?

The Supreme Court never being one to make things simple, there are three different ways to answer that question — three different levels of scrutiny which a law may receive: rational basis review, strict scrutiny, and intermediate scrutiny.

Rational basis review is the lowest standard of scrutiny and is the one most often used to examine a law. To pass rational basis review, the law in question must be rationally related to a legitimate government interest. For example, in the case of my doctor: the government has a legitimate interest in ensuring that the residents of the state receive competent and safe healthcare. Accordingly, it requires licensing for the practice of medicine in the state, which entails certain education, the passing of board exams, &c. One who has not met the licensing standards is not permitted to practice medicine within the state and is thus an object of legal discrimination. But because the licensing requirement is rationally related to the legitimate end, it is a constitutional form of discrimination. If, on the other hand, in pursuit of competent and safe healthcare the government were decide to license random citizens to practice healthcare, that would not be a means rationally related to the legitimate end.

It's worth noting that a court, under rational basis review, is asking only whether the government had a rational basis for believing that the law would help it achieve its end. The court is not asking whether that belief actually is correct; courts do not perform such fact-finding, instead leaving that to the political process. Accordingly, rational basis review has historically been very easy to overcome. It's almost a given that if a law is given rational basis review, it will be upheld as constitutional.

Strict scrutiny lies on the other end of the spectrum. If a law receives strict scrutiny, it is almost certainly not going to pass strict scrutiny. For in order to pass strict scrutiny, there must be a compelling government interest (as opposed to merely a legitimate government interest), and the means by which the government pursues that interest must be narrowly tailored and the least restrictive means. Instead of merely needing to show a 'rational basis' for the law, the government must show essentially, that the law is the absolute best way to achieve its purposes, and that those purposes are vital to the exercise of government.

Strict scrutiny is an elevated level of scrutiny that is applied when the discrimination affects what are called a 'suspect class'. That is, a class that, when affected by discrimination, it is suspected to be invidious. Often such classes have been the target of historical discrimination and/or pertain to immutable characteristics. Under current constitutional law, suspect classes include race, national origin, and religion. Strict scrutiny will also often be triggered in cases involving fundamental rights.

For example, if a government were to pass a law that bars African-Americans from being doctors, because the discrimination targets a suspect class (race), the law would receive strict scrutiny. A court would then ask whether ensuring competent healthcare is a compelling governmental interest, and then whether barring African-Americns is a narrowly tailored — i.e., doesn't accidentally include a significant number of people who should be excluded or vice versa — and is the least restrictive means of achieving that interest. Obviously, such a law would fail to meet the standard.

Finally, in between rational basis review and strict scrutiny in intermediate scrutiny. In order to survive intermediate scrutiny, the government must show that it has an important governmental interest (more than legitimate, less than compelling) and that the law's means are substantially related (more than rationally, less than narrowly tailored and least restrictive) to that interest. Currently the only class which will trigger intermediate scrutiny is sex.

Here's why I say all of this now. Kennedy's question, 'Do you believe this can be treated as a gender-based classification?' is getting at the issue of which level of scrutiny to apply to the case. Under precedent, sexual orientation has usually received rational basis review, but there's good reason to believe that the Supreme Court should revisit that conclusion; if for no other reason than that the district court first hearing this case said this case should receive strict scrutiny.

If it is gender-based classification, that would trigger intermediate scrutiny, which would require California to show that it has an important governmental interest is at stake and that prohibiting same-sex marriage is substantially related to that interest. Otherwise, it might require strict scrutiny — as the lower court found it did — or merely rational basis review.

Cooper responds to Kennedy's question by pointing out that 'virtually every appellate court, State and Federal, has agreed that it is not a gender-based classification.' But of course, the Supreme Court is free to overturn those decisions, though it may be hesitant to do so in the face of such overwhelming precedent.

SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?
Sotomayor here points out what is perhaps an key inconsistency in the defendants' argument. For the defendants freely admit that it would not be permissible for the government to deny homosexuals benefits on the basis of their sexual orientation — which indicates that they may be a suspect class — but that it is permissible for the government to deny them the legal label of marriage.

But the defendants point out that marriage is indeed a different manner. While it would not be legitimate for the government to arbitrarily deny homosexuals certain legal benefits, the very nature of the institution of marriage means that denying someone the right to marry someone of the same sex is not an arbitrary distinction. The defendants' principal argument here is that the state interest in regulating and fostering procreation, something for which same-sex couples are not similarly situated when compared to opposite-sex couples.

But further than that, the defendants also maintain that redefining marriage 'as a genderless institution could well lead over time to harms to that institution and to the interests that society has always used that institution to address,' aside from simply just biological procreation. To this point, the defendants call on the plaintiffs own witnesses which state that 'redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.' And because some of those consequences could be adverse, there is a basis by which the state of California might want to regulate marriage in the way that Proposition 8 does. Justice Scalia jumps in himself to point out that the jury is still out on the sociological effects of adoption by same-sex couples, for example.

COOPER: It is the respondents' responsibility to prove, under rational basis review, not only that there clearly will be no harm, but that it's beyond debate that there will be no harm.
Cooper rightly states what the respondents' responsibility is in the case, but only if the Court decides that rational basis review is the proper standard of review. That is something that the Court will have to decide. If the Court decides to use rational basis review, Proposition 8 will be struck down only if the respondents can show that there is no rational basis for the law.

KENNEDY: I think that there's substance to the point that sociological information is new. We have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more. On the other hand, . . . there are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status.
While Kennedy has a point here, I myself am not certain of its legal relevance. The potential harm of not ruling Proposition 8 as unconstitutional is not all that relevant. I think Cooper is correct to point out that those concerns are proper in the realm of politics, but not in the realm of discrimination law. As he goes on to say, if the law is rationally related to a legitimate interest of the state, legal precedent is clear that the disadvantage to the group is legally irrelevant.

BREYER: There are lots of people who get married who can't have children.
Breyer here latches onto the procreation argument and points out that procreation cannot be the full purpose of marriage, or the full interest of the state in regulating marriage, because the state allows people to get married all the time who can't have children. Kagan goes on to point out that the state allows 60-year-olds to get married all the time, even though it's almost certain no children will result.

It's a fair point and one that I think Cooper absolutely bungles in almost cringe-inducing ways at times. If this is indeed, the core of the defendants' argument, it's a rather weak one, as the interplay between Cooper and the justices demonstrates. That doesn't mean it isn't strong enough to pass given levels of legal scrutiny, but it does play into how the Court will look at the state interest in regulating marriage and how close the relationship is between that interest and the way in which Proposition 8 regulates it.

If there is one takeaway from this article, this is it. The legal debate over same-sex marriage is precisely this: What is the government's interest, if any, in regulating marriage? And how closely is restricting it to opposite-sex couples alone related to that interest? And is it close enough to meet some legal standard? As the petitioners see it: the state interest in regulating marriage regards procreation and child-rearing, as opposed to how they would characterize what the respondents view the state interest in regulating marriage, 'the emotional needs and desires of adult couples.' Not surprisingly, this strikes at the heart of both the legal and cultural question.

Unfortunately for the petitioners, it is on this question that his initial argument ends. On to the oral argument of the respondents, the opponents of Proposition 8!

ROBERTS: Perhaps you could address your jurisdictional argument?
Like the petitioners, the attorney for the respondents' opening statement is cut off before it gets rolling, as the justices ask him to address the question of standing. Though, as I said above, it is possible that this is the question that the case gets ultimately decided upon, it is also not the one that most readers will be interested in — understandably so. So I am going to forego further discussion and jump to the merits.

ROBERTS: When the institution of marriage developed historically, people didn't get around and say, 'Let's have this institution, but let's keep out homosexuals.' The institution developed to serve purposes that, by their nature, didn't include homosexual couples.
Roberts makes an interesting point in response to Olson's argument of exclusion, and it's not a point that I've heard made before. Marriage, as it was originally instituted, was created with specific purposes in mind, purposes for which it would make no sense to include same-sex couples. He is correct on this, but it also raises the question of whether, as the benefits and purposes of marriage have evolved (have they?), how much does that story of origin matter anymore?

Now to this, Olson correctly makes the assertion that in the case of California, the state did specifically and intentionally exclude same-sex couples from the institution of marriage. Thanks to the California Supreme Court, same-sex couples were permitted to marry, until Proposition 8 was passed, which acted to exclude them. But does that decision change the nature of every legal action which succeeds it?

SCALIA: When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Some time after Baker, where we said it didn't even raise a substantial Federal question?
Here Scalia asks a question that only Scalia could ask (Thomas could too, if he asked questions). This is the one place in oral argument where philosophies of interpretation jump up front and center. If the respondents' argument states that the Equal Protection Clause makes it unconstitutional to prohibit someone from marrying someone of the same sex, does that mean that it has been unconstitutional since the Clause went into effect back in 1868?

As the discussion between Olson and Scalia plays out, Olson eventually admits that it hasn't always been unconstitutional, but that it became so when 'we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control,' and, specific to California, when the California Supreme Court decided that sexual orientation was not a legitimate basis on which to discriminate when it comes to marriage.

This conflict between Olson and Scalia does represent a substantial difference of opinion on how to interpret the Constitution. If Scalia is going to uphold the unconstitutionality of Proposition 8, he is going to have to be shown that such a prohibition has always been unconstitutional, but that this is the first time that the Court is recognizing that fact. That's a nigh impossible assertion to swallow.

On the other hand, Olson's argument is that the Equal Protection Clause is one that evolves and the what it protects and what it doesn't changes over time, along with the culture. Because we now view homosexuality as an immutable characteristic, the respondents argue, it should trigger strict scrutiny under the Equal Protection Clause, even if that wouldn't have been the case 50 years ago.

But the question I think that should have been raised here is to what degree the case is about homosexuality, and to what degree it is about anyone — heterosexual or homosexual — from entering into marriage with someone of the same sex. Though I know the arguments on both sides, I'm surprised it wasn't even mooted here.

ALITO: California provides all the substantive benefits of marriage to same-sex domestic partnerships. Are you seriously arguing that if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?
Now is the opportunity for the attorney for the respondents to bungle his arguments. For when he answers the question with a 'no', he contradicts what he said immediately before Alito's question. But even in contradicting himself, he makes an interesting point, though not one whose significance is immediately clear.

Olson's point is this: California law has already decided that all of the defendants' arguments for prohibiting same-sex marriage — child-rearing, adoption, cohabitation — are insufficient. They are insufficient because California law already grants such benefits to same-sex couples! How can California claim that its rational basis for prohibiting same-sex marriage is to prevent children from being raised by same-sex couples if it already allows children to be adopted and raised by same-sex couples? Certainly a rather damning argument.

Nevertheless, Alito immediately recognizes that the respondents are trying to have their cake and eat it too. Either prohibitions against same-sex marriage are unconstitutional only in California because of the political decisions made in California, or such prohibitions are unconstitutional nationwide. But you cannot base an argument that same-sex marriage should be unconstitutional nationwide upon the political facts of California; other states have made contradictory political decisions, and thus the politico-legal context is different.

ROBERTS: So it's just about the label in this case. Same-sex couples have every other right, it's just about the label. . . . If you tell a child that somebody has to be their friend, I suppose you can force the child to say, 'This is my friend,' but it changes the definition of what it means to be a friend.
Roberts again makes what is, to me, a novel argument. He is, of course, quite right that in California all that is at stake is the label. Same-sex couples in civil union in California have the right to adopt, have hospital visitation rights, have certain financial rights, &c. What they don't have is the legal label of 'marriage'. And so Roberts uses what I think is a genius analogy to point out that you can use whatever label you want for anything, but in doing so, one might change the label means. On that point...

ROBERTS: [Why have we] recognized marriage as a fundamental right? You've said it's because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.
While this doesn't address the label of 'marriage', it once again strikes at the heart of the issue. Culturally and legally: what is marriage, and why is it a fundamental right? I don't know our culture agrees on the answer anymore, which is perhaps exactly why there is such vehement disagreement on this issue. Other issues related to marriage are easier to overlook, but this one has become ever more front and ever more center.

I have been honestly and pleasantly quite surprised at how keenly the justices recognize the underlying issues and how they must be played out on the legal stage.

SOTOMAYOR: The bottom line that you're being asked — and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist?
This is the 'slippery slope' argument in legal form. 'If we say that same-sex marriage is constitutional protected, what about polygamy or incest?' Olson here gives the standard response in legal form: polygamy raises issues of exploitation and abuse, complicates inheritance laws, &c. While I think these are good legal counterarguments, I wish Sotomayor had pressed him a bit further in order to get at issues of legal scrutiny. Not all cases of polygamy are exploitative, so would not such a law be over-inclusive, thus failing strict scrutiny? This is perhaps the one exchange in the case that I wish had been pursued further.

When Olson further responds that, 'If a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status,' I find it to be an unfortunate equivocation on Olson's part. Sotomayor isn't asking about polygamy per se, but polygamous marriage. And in that case, polygamous marriage and same-sex marriage are either both behaviors or both exercises of rights.

KENNEDY: The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters. . . . But you're doing so in a case where the opinion is very narrow.
For the second time now, Kennedy has shown rather pronounced trepidation about taking up the case (and this won't be the last time), especially in favor of the plaintiffs — declaring Proposition 8 as unconstitutional. He seems to be very concerned and/or preoccupied with the fact that introducing same-sex marriage as a fundamental constitutional right might have profound adverse effects — that we simply don't know what the sociological effects will be. And even though Olson points out that the district court did extensive sociological research, Kennedy betrays that he does not entirely trust those findings — at least not enough to venture into the uncharted waters. A rather philosophically conservative display on Kennedy's part.

And though Olson tries to counter Kennedy's argument by saying that allowing interracial marriages in 1967 in Loving was also uncharted waters, but waters into which the Court correctly ventured, Kennedy is correct to point out that interracial marriage had been happening elsewhere in the world for hundreds of years, whereas same-sex marriage is only a 13-year-old idea worldwide, as Alito will point out later.

With that ends the resopndents' oral argument. Finally is Solicitor General Verrilli, amicus curiae, on behalf of the respondents.

ROBERTS: You don't think you're going to get away with not starting with the jurisdictional question, do you?
Chief Justice Roberts gets the whole Court laughing by once again diverting the attorney into the standing question. Well played, sir.

BREYER: So a State that [provides no benefits to same-sex couples] hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution.
Earlier General Verrilli makes the same point that Olson had made earlier: that the political facts of California act to undermine the rational basis by which the petitioners are arguing that Proposition 8 is a permissible pursuit of government interests. Breyer here properly challenges the legal principal that such an argument entails.

Breyer's basic argument is this: the reason you want us to rule against Proposition 8 is because the political facts in California undermine the rational basis by which the petitioners argue for Proposition 8. But if that's our reason, it means that that rational basis would suffice in a state which doesn't afford same-sex couples legal benefits. And so you would end up with a rather peculiar outcome: the Constitution would provide more protection for same-sex marriage in states which afford same-sex couples certain legal benefits than it would in states which afford same-sex couples no legal benefits. A peculiar outcome, but peculiarity wouldn't be unprecedented in law.

ALITO: The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. . . . On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
Alito finally raises the question that Kennedy had been driving at earlier. Why should the Supreme Court be the one to venture into uncharted waters? Why should the court make a political question into a legal one? The Court all the time leaves decision up to the political process, deferring to the judgment of the legislative and executive branch on all sorts of issues. Why when the stakes are so enormously high, and the Court is not equipped to do the necessary fact-finding — much less able 'to see the future', as Alito puts it — should it now step in and interrupt the political process?

In response to this, Gen. Varrelli notes that the position of the United States Government (that is to say, the Obama administration) is that the present case should be constrained to the facts of California alone and that other states may have different outcomes. But at the same time, he notes that it should be left up to 'adjudication' in other states, not necessarily the political process.

ROBERTS: You say, 'It's got to happen right now in California,' but you don't even have a position about whether it's required in the rest of the country.
A rather cutting remark by Chief Justice Roberts. It's a true one, but it rather cuts down the United States' position. Varrelli responds that it's contingent upon the fact that California allows adoption, but Roberts comes back immediately with, 'So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.' And Roberts is right. The United States's argument isn't as principled as either the petitioners' argument or the respondents' argument. And in so arguing, Varrelli cuts his own legs from underneath him by making the argument not a legal one about constitutional rights, but a political one about preventing harm with good laws.

ROBERTS: It seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?
As much as I was cringing at Cooper's mangling of the procreation line of questioning, I'm cringing much more at Varrelli's responses here. His argument very clearly is internally inconsistent, and Roberts has now shown that on multiple occasions. And it won't take long for Breyer to pile on as well. One can very sensibly hold a middle-ground position politically on this matter, but Varrelli is quickly becoming a case study for how untenable such a position is legally. When both Roberts and Breyer are pointing out your internal inconsistencies, your argument has a real problem. And just as Cooper ended his argument in disarray, so also Varrelli.

Conclusion
With that I'll close out the commentary. The attorney for the petitioners has a final rebuttal, but the meat of the argument is largely once again the question of the political process. Is this something that should be left to the political process in each state? Is this something that should be found unconstitutional in every state? Is this something which is unconstitutional only in California? And if the latter, what is the principal by which a court would decide whether it is constitutional or not in other states?

But regardless of the answer to those questions, the underlying legal principle remains the same. To restate as I put it above: What is the government's interest, if any, in regulating marriage? And how closely is restricting it to opposite-sex couples alone related to that interest? And is it close enough to meet some legal standard? Until one answers that first question, one has no hope in attempting to answer the second or third. And I think that is precisely the problem: we don't know how to answer that first question.

Hopefully you learned something from reading through this. A little bit about the facts of the case, a little bit about how the Supreme Court works, a little bit about constitutional law, and a little bit about how to think and argue about these issues in thoughtful ways which avoid mischaracterization, personal attacks, and ridicule. And mostly, thanks for indulging my commentary along the way!

Street by James Nares

This past weekend I was treated to one of the most astounding pieces of contemporary art that I've ever had the pleasure to see. Making one of my frequent visits to the Metropolitan Museum of Art, I stumbled upon a new exhibit, Street, created and curated by New York artist James Nares. The exhibit is two parts: the first is an hour-long film, entitled Street; the second is an assembly of pieces from the Met's collection, curated by Nares to represent how artists have depicted urban streetlife over the years. While this second part is interesting itself, what really captivated me — and everybody else — was the film.¹

The concept for the film is simple enough: Nares used a high-definition, high-speed camera — like those used to film those cool videos about bullets breaking glass — to film the streets of New York City as he drove down them, filming over 16 hours of people, and then editing it down to one hour of ultra slow-motion film, in short cuts, with Thurston Moore providing audio accompaniment on 12-string guitar. The result is utterly mesmerizing.

If you frequent modern art galleries and museums, you probably have some opinion about video art. Most people, if they don't just pass up video art entirely, will peek in for a few minutes before moving on to something else more interesting. (Not being immune to that attitude, I recently felt quite proud of myself when I watched an entire 9-minute video at MoMA from start to finish.) There are many reasons for why this is so: most video art is plotless, arcane, and/or self-indulgent. In addition, video art has a temporal mandate which other art doesn't: it requires you to sit in front of it for several minutes or even an hour in order to consume it all, or even to begin to comprehend. So for many — including myself, often — video art gets little to no attention.

And that was precisely what makes the Street exhibition such a phenomenon. Instead of an dark, empty room with three or four vacant benches, the screening room for Street was packed, with many viewers along the walls or sitting on the floor. Instead of people sticking their head in for a minute or two and then awkwardly leaving a minute later, viewers stayed for long stretches of time, with people scrambling for a bench seat on the rare occasion that someone left. Remember how I mentioned my pride that I once endured a video for nine minutes? By my estimate, I enjoyed watching Street for nearly half an hour. And had I not an appointment to get to, I'd have stayed longer.

So what is it about Street that attracts so many viewers for so long? What has Street tapped into that so many other art films miss? What makes it work so well?² I think it all comes down to the one word I used above: the piece is mesmerizing.

Let's start by looking at the most core concept: people-watching. People-watching is, for many New Yorkers, a way of living. More than a simple hobby, it is how we spend every spare moment, whether on the subway, in the Park, or just walking down the street. If nothing else is demanding his eyeballs' attention, a New Yorker is probably watching all the people around him. Street is an hour of that, but with the added bonuses of being invisible as a viewer, and of being told that by watching, you're looking at art. Even though I saw less than half of the video, there were so many interesting people to watch: fake Sesame Street monsters, a woman who looks like she's about to sneeze, a man who slaps his friend upside the back of the head, officers guarding a police line, and every variety of cell phone, shopping bag, and fashion style you can imagine.

But the innocent voyeurism of the experience isn't really capable of single-mindedly capturing one's attention for so long. It is how Nares presents the streets of New York that makes the film extraordinary. (At this point it is worth pulling up a clip of the film to see a bit for yourself. Sorry I couldn't embed it here!) As I said above, Nares filmed at ultra high-speed, which when presented becomes ultra-slow-motion. Each cut lasts 10–60 seconds of film time but records only a second or two of real time. One effect of this is to present an extraordinary contrast to the usual hustle and bustle of New York City. Instead of people moving a mile a minute, it takes seconds for anyone to move but a few inches. To someone diving into the Met on a weekend, the emotional effect of this is rather dramatic, even though it wasn't what I clued in on initially.

But perhaps the more important effect of this slow motion depiction is what it allows viewers to see. Aside from the Really Cool™ things like when a pigeon flies across the screen — reminding one of Eadweard Muybridge's photographs of a galloping horse or the motion studies in the adjoining galleries — there is just so much content to every vignette.

For example, the vignette beginning at 0:24 in the clip linked above is one of my favorites: there are so many characters to hone in on, from the middle-aged woman who occupies center stage to the girl in the boots striding across the screen; from the old man scowling to the woman crossing the street with the goods she probably just bought from Bed Bath & Beyond.

And that's just the people! Even if you get bored with them, each vignette is filled with things to enjoy. Like the remains of stickers on the lamppost, the fully saturated color of the halal food cart or the shape of the taxi cab as it slowly obscures the camera's view. If you're someone living in New York, you may even start to try to place each vignette based on the street scene. For example, in this vignette, I first see the 'Old Navy Chelsea' sign, giving me a rough idea, but it's not until I see the awnings for Bed Bath & Beyond that I know exactly what corner I'm on. It becomes almost like a game of 'Where's Waldo?' as you take in the entire scene, hunting for that one detail on the side that solve the riddle.

One other vital element to the film is the manner in which it was filmed. Because Nares was driving down the street as he filmed, the vignettes pan across almost static scenes. Each begins almost as a photograph, like one sees so often in documentaries as the camera pans across old photographs. But then you realize that the panning reveals a three-dimensional depth, showing things in the background previously hidden. A few seconds later and you notice that things in the 'photograph' are moving. Legs are swinging back and forth and mouths chewing food. And by the time you're getting the hang of it, a new vignette begins, and your eyes are fooled once again. Yet as subtle as the motion can be at times, it does something for the eyes that even the best street photographers of the 20th century have never quite been able to do. It draws you in more, and it is harder to dismiss what you see as 'just another photograph of someone I don't know'.

All of this is incredible in and of itself, but the thing that ties it all together and makes the film work so extraordinarily well is the soundtrack. Now, I should say that Sonic Youth is one of my favorite bands of all time, and so I'm probably a bit biased knowing that Thurston Moore, one of the band's guitarists, provides the music. But I do think it is nevertheless true that Moore's atonal, dissonant, droning on 12-string guitar is a near-perfect accompaniment for the tone of the film. Despite being atonal, it is not abrasive or off-putting (a little-known secret is that the vast majority of the atonal music that a person will hear in their life is in film soundtracks). Despite being acoustic, it is not hollow. And despite often being built around drones, it is dynamic. The paradoxes of the music supports the visual paradox of viewing The City That Never Sleeps in such a surreal, dreamlike manner. The viewer is lulled into an almost hypnotic state, but never put to sleep.

Every scene has so much, that even in the film's apparent lackadaisical pace, you still feel like you missed so much. Something will grab your attention, and you remain fixated on it, almost forgetting everything else in the frame. For an hour, nearly nothing happens, but you can still feel like you missed it all. And that feeling is confirmed upon repeated viewings. Even as I write this, I find myself watching the clip over and over again, seeing new things and smiling at details that I hadn't seen the first three or four times around. If I had the time, I feel like I could watch the hour-long film multiple times in a row and still come away wanting more.

Not only do I think that Street is a piece of video art that 'works' in that it attracts viewers, but it also 'works' in the sense that all good art 'works': it exposes the world in a new way. When the motions of a microsecond are expanded into multi-seconds, one can't help but see a fresh face of humanity. I don't think I've ever seen so much beauty in a simple yawn before; nor been so enraptured by noticing the legs of a couple moving in concert with each other as they cross the street. I saw both the diversity and unity of humanity. I saw joy, pride, love, stoicism, determination, boredom, anxiety, and despair all in the course of seconds. And I saw it all as they moved about, ever so slowly, in a neighborhood of steel built by men and women just like them. And I didn't want to look away.

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¹It is worth saying, however, that the rest of the exhibit is well worth seeing, especially when joined with the film. I could say much more about the combination of the film with the selected objects, and how the two affect each other, but that is beyond the scope of the present essay.

² Note that I am not here necessarily implying that Street is good art merely because it is so attractive. For example, I wouldn't say that Mona Lisa or Starry Night are the best pieces at the Louvre or MoMA, even though they are the ones that receive the highest audience. But I do think that the public appeal of art is an important factor and is, at the very least, something is worth critically thinking about.

Fool in the Rain

I've written another piece for New York City Vignettes. This one reflects on how weather can remind us how we are not in control of so many things. And how that is actually a good thing!

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Worship, Sin, and Grace

I recently watched a long-form interview with Paul Tripp. As some of you know, Dr. Tripp is one of my favorite contemporary Christian writers/teachers; in fact, one of his books, What Did You Expect? has already been the impetus for one of my earlier posts.¹

The interview is a general one, touching on many different aspects of Tripp's writings. As I've mentioned before, Tripp's main strength is his experience in counseling, making his writing and preaching very pastoral and drawn from 'real life' experiences. This is amplified by the fact that his writing is consistently centered around grace and understanding the tangible effects that it should have on how we live our everyday lives.

This theme runs through the Resurgence interview, including the approximately 15 minutes spent specifically on marriage. While Tripp touches on quite a few points in those 15 minutes, I want to draw out two specific principles: worship; and sin and grace.

Worship
If you've read my previous posts, you'll be familiar with the idea that marriage is primarily built around God. Tim Keller talks about it in terms of each spouse being an instrument of God's sanctifying work in the other. Tripp offers a new variant on the same theme of God-centeredness: marriage must be primarily about worshiping God.

This plays off a central theme to Tripp's theology of the Kingdom of God and the Kingdom of Self. The default state of sinful man is to build up the Kingdom of Self.² The Kingdom of Self is about loving oneself, about serving oneself, and about satisfying one's own desires, often to the detriment of God and others. Building the Kingdom of Self is not always explicitly malicious — it sometimes even has the appearance of selflessness — but it is always sinful. The sin behind the Kingdom of Self is inherently anti-social and selfish; and so it is no surprise that it is absolutely destructive to marriage.

The only thing which can effectively displace the Kingdom of Self is the Kingdom of God. Any attempt to displace the sinful selfishness of your heart with anything other than God's love and grace is futile and will ultimately regress back to the same sinfulness.

The result, as Tripp puts it, is the horizontal skirmishes in our relationships — especially between a husband and wife — are the product of a deeper war between God and self. Tripp argues that the problem is never that the husband doesn't love his wife enough (or vice versa) but that the husband does not love God enough. For in the absence of a love of God, there will always be a love a self.

In light of our inescapable sinfulness, the only hope for continued, committed love in marriage is to center the marriage around the worship of God. Only when a husband and wife are worshiping God first will they find the grace to love each other. And the only hope for persevering in worshiping God is the cross of Christ. No amount of self-control and personal resolve can bring this about; only the grace of the cross. As the apostle Paul puts it, '[Christ] died for all, that those who live might no longer live for themselves but for him who for their sake died and was raised' (2 Cor. 5:15).

Tripp's point reminds me of a recent article by Thabiti Anyabwile. Though the article is geared towards defining manhood, his point is universal to all. Anyabwile correctly suggests that worship of God is the very core of what it means to be human. It is indeed what we were created to do. In the words of the Westminster Catechism puts it, to glorify and enjoy God — core components of worship — is 'the chief end of man'. One who does not worship God is missing the very thing for which he was created; and absent that, the only thing seemingly worth living for is oneself. Accordingly, worship must also be the very center of marriage. When the worship of God is absent, it will inevitably be replaced by the worship of self which cannot help but exploit one's spouse.

Of course, worship comes in a great variety of forms, and our idea of worship should not be restricted to simply singing in church on Sunday. In fact, someone whose worship is restricted to congregational singing to Sunday is falling far short of his calling and purpose as a human. One can even talk a good spiritual talk throughout the week without living a life of worship. Worship is not found in individual acts or words but in the direction of the heart. As Tripp has said elsewhere, 'Worship is not first an activity; worship is first an identity.'

So how is this applicable to singles? In an earlier post I proposed that what we should most prize and seek after in a potential spouse is godliness. (For, as Tripp along with scores of others points out, attraction is wholly insufficient grounds for a sustained marriage.) At the time, I left the term 'godliness' undefined. But here I think we find the core of what this means: worship.

When seeking a potential spouse, we should seek someone whose life is built around the worship of God and God's kingdom. If you want to break it down further, to what degree does s/he glorify God in all things? to what degree does s/he enjoy God in all things? Is his/her worship lip service and outward action, or is it their core defining feature?

We should desire someone whose own worship of God spurs us on to more deeply worship God ourself, and someone whom we long to likewise spur on to worship God more deeply. After all, if worship of God is what it means to be human, and if marriage is properly seen as something through which God sanctifies us, then worship must be a fundamental factor and goal of marriage — for both you and your spouse.

This leads to the second principle...

Sin and Grace
Unfortunately, no human — male or female — will ever perfectly worship God in this life. Every human substitutes it with worship of self. Every human will, to some extent, build the Kingdom of Self, exploiting those nearby. And so every spouse, echoing G.K. Cheterton's quip, must recognize that he himself (or she herself) is the biggest problem in their marriage.³ Only upon recognizing that can one begin to rely upon God for the grace to love their spouse. Otherwise it is all too easy to fall into the blame game and victimization.

Dr. Tripp argues in the interview (and several other places) that the Christian perspective on marriage is 'a flawed person married to a flawed person in a fallen world, but with a faithful God.' That is, marriage is inextricably tied up in the very message of the gospel: inestimable sin matched only by inestimable grace. Given this inevitable sinfulness, marital love of a spouse, in this Christian perspective, means loving them even in their sin and 'wanting to be part of the ongoing struggle of their conformity to Christ.'

Thus one of the most necessarily fundamental disciplines of marriage is daily confession and daily forgiveness. A husband must be quick to apologize when he has sinned against his wife; a wife must be quick to forgive when her husband has sinned against her. And vice versa. Not surprisingly, these are characteristics that, yet again, can only stem from a relationship with God which understands the depths of the grace which God has granted us: a relationship which worships God as both holy and loving. With such a relationship we can both truly desire God's holiness and truly rest in God's love.

This can likewise be applied to dating: we should be looking for a potential spouse who is humble enough to recognize his sinfulness; who is quick to repent when he has sinned; who is quick to forgive when sinned against — rather than acting defensively when confronted with his sins or being stubborn in the face of his spouse's sins.

The reason why Tripp argues that this element of confession and forgiveness is so important is precisely because no one will ever marry a non-sinner. But because the purpose of marriage is to incite worship of God and to be used by God in the process of sanctification, it is the humble response that each spouse has towards the reality of their sinfulness that becomes important. With a spouse committed to confession and forgiveness, we become more aware of how much grace God has lavished upon us, and in turn become better witnesses before the world to that grace.

Though these all sound like lofty and unattainable standards — especially when you compare yourself to them and realize how pathetic a candidate for marriage you yourself are — it all comes back to the gospel. After all, all of our sins are covered by the blood of Christ. And as we come to understand this better, we are more able to worship God, to confess our sins, and to forgive those who sin against us. And as we worship God more, confess our sins, and forgive others, we come to better understand and love God and his grace. God's design is by far the most beautiful sounding feedback loop ever conceived.

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¹Maybe it's because he is a native Ohioan, like myself... And if you use Twitter and don't already follow him, you should.

² This is the same principle behind Tripp's idea of 'faux love' as explained in a prior post. In short, what we so often describe as love is really just a convenient self-deception of self-love which builds our own little kingdom.

³ If you're unfamiliar with Chesterton's quip, I am referring to an anecdote involving him and a newspaper editorial. The paper asked readers to respond to the question, 'What’s Wrong with the World?' Chesterton sent in as brief and as true a response as can be imagined: 'Dear Sirs: I am. Sincerely Yours, G. K. Chesterton.'

Ockham's Razor

For a long while I've been wanting to write a series of posts on epistemology. Recently I actually mentioned this intent to someone else, so I suppose I now have a real incentive to do so. So it begins.

Epistemology
Since this is the first in the series, I should first make sure readers understand exactly what epistemology is and why I am writing a series on it. In brief, epistemology is the branch of philosophy which studies knowledge. The two basic questions of epistemology are:

1. What does it mean to know something?
2. How does one know something?

A classic formulation of an answer to the first question, 'What does it mean to know something?' is that knowledge is 'justified true belief'. By this definition, for one to know something, one must actually believe it to be true; that belief must actually be true; and that belief must be somehow justified. Thus, by 'knowledge' epistemologists mean knowledge of facts, as distinguished from acquaintance knowledge. For those who know European languages, epistemology is interested in saber, savoir, or wissen; rather than conocer, connaître, or kennen.

When asking the second question, epistemologists are asking how this 'justified true belief' comes about. How much of human knowledge is innate and how much is acquired? If acquired, does it come through sensory interaction with the world, is it a product of reason, or is it acquired in some other way?

Though the study of epistemology can sometimes be byzantine, technical, and admittedly boring, it should hold an extremely important place in a Christian's life. After all, we do not blindly believe Christianity to be true, but have reasons for our belief. In fact, we should assert that we know Christianity to be true. Whenever someone asks why you believe that Christ died for our sins, was buried, and was raised on the third day (1 Cor 15:3), you are dealing with the question of how you know. The way you respond is epistemology.

Thus, the verse which I hope will guide this series is 1 Pet 3:15:

in your hearts honor Christ the Lord as holy, always being prepared to make a defense to anyone who asks you for a reason for the hope that is in you; yet do it with gentleness and respect.¹

It is to this end that I write these posts.

Who Is Ockham?
We begin our adventures in epistemology with William of Ockham (or Occam), a Franciscan friar in 14th-century southern England. As a friar, Ockham was a typical representative of the intellectual life in Medieval Europe; which was mostly found within the church, specifically within the various religious orders.

Ockham was an instrumental figure in late Medieval philosophy, writing in a diverse number of areas, including metaphysics, ontology, logic, and epistemology. Though he was one of the pioneers of nominalism, he is most well-known for the maxim named after him: Occam's Razor (OR). (Though this is the most common spelling of the maxim, for consistency, from here on I'll spell it Ockham.)

The maxim has been restated in a number of different ways, but was originally stated by Ockham as, 'entia non sunt multiplicanda praeter necessitatem' — 'entities must not be multiplied beyond necessity'. Perhaps the most common restatement is, 'Other things being equal, a simpler explanation is better than a more complex one.' The philosophical term for this is parsimony: a sophisticated way of saying, 'Keep It Simple, Stupid.'

At the Races
At this point an example may be in order. Imagine that you have taken your children to a horse race. Upon arrival you take your kids to find some food. As you are standing in line at the hot dog stand, you hear the stamping of hoofs in the distance, gradually becoming louder. You say to your kids, 'Listen! A race has started!'

Why did you conclude that that was the case? You've not actually seen any horses. Couldn't it have been that the person in line behind you was playing a hi-fidelity recording of galloping horses, carefully adjusting the volume to mimic their approach? Couldn't it have been that the stable has caught fire and the zebras inside are now stampeding to escape? They are all possible, strictly speaking and you have just as little evidence for any of them. One of the reasons you concluded that a race had started is Ockham's Razor: given the circumstances, it is the simplest explanation; it requires the fewest improbable 'ifs'. The second option is only viable if there is someone behind you in line; if he has a recording of stampeding horses; and if he is skilled enough to manipulate the volume of that recording. The third option is only viable if there is a stable; if there are zebras kept within; and if it has caught fire.

Ockham's Razor does not only apply to evaluating individual explanations, but also to the stacking of explanations. After all, in our race example, isn't a possible explanation of the sound of stamping of hoofs that both a race has started and that zebras are stampeding from a burning stable? Why not conclude that both are happening? Ockham's Razor. If multiple explanations are not necessary, OR says we should not consider them. Again, we should prefer the simpler explanation.

Not a Rule
It is important to understand that Ockham's Razor is not a rule, but a guideline. That is, OR says that we should prefer simpler theories, but it does not assert that simpler theories are actually correct. In our racetrack example, OR cannot say whether or not someone behind you in line has a recording of galloping horses; it only says that we should disprefer that to simpler explanations.

This is important distinction to make, especially when looking at OR from an epistemological perspective. OR is never grounds for knowledge, yet it is often practically treated as such. In fact, OR has been frequently misapplied to account for the growing presence of atheistic science in the modern world.

How a Nick from Ockham's Razor Killed God
One of the areas where Ockham's Razor has been most often utilized is in the realm of science. The scientific method is geared around finding the simplest explanations and eliminating needless complexities. Whenever a cause is found to be sufficient, the scientific method assumes that it is the only cause, unless other causes are also proven. Before the modern era, explanations of phenomena was often theological and attributed to God's direct intervention in the natural world. Weather, sickness, health, light, &c. Where there was a gap natural explanation, God was inserted.

As modern science advanced, there were more and more natural explanation for things and fewer gaps to put God in. We came to know that sickness is the introduction of harmful bacteria and viruses to the human body, and healing is the successful work of antibodies and the like. So where does OR come into all of this? When science discovers a given natural cause, one has two basic options:

1. Sickness is naturally caused by microorganisms; OR
2. Sickness is naturally caused by microorganisms AND by the supernatural work of God.

Ockham's Razor says that we should prefer the former, just as we preferred to explain the stamping of hoofs as horses racing around the track to both horses racing around the track and a stampede of zebras. As more natural phenomena were found to be naturally caused, God became more of an unnecessary complication. At first this exercise of OR brought about Deism and the idea of a 'watchmaker God'.

But over time, with science being able to explain more and more, it has resulted in full-blown atheism. To an atheist, God has become unnecessary in so many cases that it is rational to infer that he is also unnecessary in cases where science has not yet found an explanation. Thus they say, implicitly invoking OR, it is irrational to believe in a God who is so universally unnecessary. Just this week, the discovery of the long sought-after Higgs boson has led some (mostly the sensationalist media, not actual scientists) to once again proclaim that the discovery has made God unnecessary for even the universe's existence.

A Christian Response
Many Christian thinkers have developed several Christian responses to this atheistic application of Ockham's Razor, which I'll not list here. Rather, I want to suggest how Christians might begin to think about OR and its epistemological implications.

The first thing to remember is that OR does not and cannot tell us what is or is not true. Nor does it tell us what is or is not rational. At best it tells us what beliefs ought to be preferred. If we refer again to our racetrack analogy, OR cannot tell us whether or not zebras are stampeding from a burning stable. In fact, OR is truth-neutral. In a universe where zebras are stampeding and one in which horses are racing, OR would tell us exactly the same thing: prefer the racing horses explanation. What is actually true is irrelevant so far as OR is concerned.

Similarly, just because some phenomenon has a natural, scientific explanation does not mean that God is not directly active in that phenomenon. Even if science does seem to make God 'unnecessary', OR cannot tell us whether such an 'unnecessary' God does or doesn't exist, nor whether it is rational or irrational to believe he does. In terms of our three-fold working definition of knowledge ('justified true belief'), OR may be helpful in telling us when one belief is more or less justified than another belief, but it cannot tell us what is true and what is false.

The second thing to consider is whether science actually has made God an unnecessary complication. Science has been able to describe many of the laws of the universe and how those laws interact to produce various phenomenon. But science has not — and cannot, I would argue — explain why the universe's laws are the way they are or even why the universe's laws are consistent from one moment to the next. In some senses, God may perhaps be an unnecessary complication, but that does mean that he has been shown to be completely unnecessary in all cases. Not only did William of Ockham himself believe that God was necessary, but that God is, in fact, the only truly necessary entity, and that everything else in the universe is dependent and contingent upon him.

But again, even if God were unnecessary in every sense, it does not prove that he does not exist.

A Christian Application
These are but a couple ways to begin to think critically about Ockham's Razor. And that is indeed the key: critical thinking. This will remain a key principle throughout this series. Behind every assertion is a series of assumptions. A good apologist and evangelist detects what other people's assumptions are and gently and respectfully challenges them.

In the case of OR, it might mean challenging the non-Christian to reconsider whether advances in science actually mean that God is unnecessary. Even if so, does that lack of necessity actually mean that God does not exist? There are many counter-examples in which the simplest explanation is not, in fact, true: those 'stranger than fiction' moments which often surprise us and bring spice to life.

Conclusion
Ockham's Razor is undoubtedly one of the most fundamental principles of Western epistemology. One hallmark of the Western world has been its ability to investigate and find simple explanations where ages past and other civilizations have concocted complex and practically unworkable systems. It has been a guide towards truth, but can be misleading and deceptive when used instead as as a form of per se proof.

In the next installment of this series, we'll start in with modern epistemology proper, beginning with Descartes and skepticism. With Descartes we begin to ask the question: Can I know anything? Can I know that the world exists? Can I even know that I exist? If so, how?

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¹ The word here for 'reason' — λόγος — is the origin of the English word 'logic' and in this context refers to rationality and argumentation.

The Healthcare Decision: National Federation of Independent Business v. Sebelius

I'll first say that this decision was extraordinarily surprising to me. I was mildly surprised that the law was upheld. I was quite surprised that it was upheld under the tax power. And I was shocked beyond belief that it was Chief Justice Roberts who wrote the opinion upholding it.

Before we begin, I'll go ahead and save you the suspense by saying that I disagree with Chief Justice Roberts's opinion, but probably not for the reasons you'd suspect. I'll come to that later.

The purpose of this article is to spell out, for the layperson, exactly what was decided yesterday, with as little spin as possible. In today's spin-heavy news media it's rather difficult to get a fair perspective on the facts of a story like this, much less a fair perspective on how to evaluate those facts. I hope this post will be a remedy for that. Having detailed the facts, I'll then give my own opinion and perspective on those facts. I hope to do so in the manner that will give you, the reader, enough footing to intelligently agree or disagree. In that vein, I appreciate all feedback you might offer.

I do apologize ahead of time for the length of this post. I did try to boil it down to the essentials as much as possible. Unfortunately, there's a lot involved in this decision, and it can only be boiled down so much before you start to edit out really important elements — both elements that I believe are important; and elements that those who may disagree with me might believe are important. After all, the opinions themselves total 193 pages!

With all the preliminaries out of the way... on with the show!

Background
I'll start with the background facts up until the case reached the Supreme Court. For some of you, this may be old news, but it will help to ensure we're all on the same page before diving into the decision itself and trying to understand it.

The primary legal issue at stake in this case is section 5000A of the Patient Protection and Affordable Care Act (ACA). This section, the so-called 'individual mandate' sets up a program in which every qualifying person must either meet certain minimum requirements of health insurance coverage or pay a fee to the federal government. As characterized by the bill's opponents, this meant that the federal government was mandating individuals to buy health insurance with a fine to be assessed for failure to do so.

Thus, in response to the bill's passage, its opponents filed law suits against the federal government, asking the courts to strike down the law as unconstitutional (We'll get to the exact claims for its purported unconstitutionality a bit later.) The suits were filed in several courts by different parties. In the end, the individual mandate was upheld as constitutional by two circuit courts, struck down as unconstitutional by one circuit court, and entangled in a legal technicality in another circuit court.

It helps at this point to understand the federal court system, which I'll try to describe as simply as possible. The United States federal judicial system is split into 13 different judicial circuits, each of which has its own court. These circuits cover multiple states each (except the DC circuit, which covers only Washington, DC). When a circuit's court makes a ruling, it is binding and effective throughout the circuit. That ruling is, however, not binding anywhere else in the United States, though it may be persuasive when arguing before other circuit courts. E.g., 'The 7th Circuit decided such-and-such on this issue. Therefore you, the 3d Circuit should also.'

Because the issue is a far-reaching one and is political divisive, and because the circuit courts disagreed — termed a 'circuit split' — the issue was certain to be resolved by the Supreme Court. A ruling by the Supreme Court would, of course, be binding throughout the United States, overruling conflicting circuits' court decisions.

The other piece of vital background information is the basic Supreme Court operation. When the Court makes a decision, it is only really deciding the final outcome. It does not formally decide on a rationale. That is, if 5 of the 9 justices vote on a particular case, they are only voting on the ultimate outcome. They may have very different reasons for voting for that outcome — and often do. But that doesn't matter. Think of it like a criminal trial: what matters for the purposes of the trial is 'innocent' or 'guilty'; the reason each juror thinks so is of secondary importance, at best.

So what is the importance of the opinion which everyone has been poring over, if all we really need to know is the final vote? The main purpose of a court opinion is forward-looking. The court is essentially saying, 'Though they may not be important in the case we're deciding right now, we are telling you our reasons for our decision so that you can better predict how we will decide similar future cases and thus make informed decisions based on those reasons.' In addition, it also informs lower courts how they are to rule on similar cases to avoid having their own decision overturned by the Supreme Court.

As an example, let's imagine a Court is trying to decide whether domestic cats are members of the fictional category blfrghs. Going into the hearing, we may have some idea of what determines what are or aren't blfrghs, but we aren't quite sure. The decision comes down that cats are blfrghs. That's all that the court was really asked to answer, and it's done so. But as a courtesy to lawyers everywhere, the court also issues an opinion that says, 'We find that cats are blfrghs because all blfrghs must be mammals and less than 4 feet long. Cats meet that criteria.' The reason doesn't matter for that particular case, since it's already been decided. But next time there's a dispute about whether a particular thing is a blfrgh or not, you can look at that opinion and make an informed decision based on that opinion. For example, you can probably safely predict that the court would not decide that a Boeing 747 is a blfrgh, because it is not a mammal and is not under 4 feet long. On the other hand, we can't quite be sure if chihuahuas are blfrghs; they fit the criteria of the court, but the court didn't say if those were the only defining characteristics of blfrghs. Remember this purpose and effect as we discuss the Court's opinion.

One final thing to keep in mind is that every opinion is written by some particular justice. If the Chief Justice is with the majority, then he usually writes the opinion. That is what happened in this case. Remember what I said immediately above, though. Just because he was with the majority (a 5-4 majority here) does not mean that the other four justices who voted with him agree with everything he writes. Where they disagree, they often write what are called concurring opinions. These basically say, 'We agree with the Chief Justice on the final outcome of the case, but disagree with him on certain aspects of his opinion.' Likewise, those who voted in the minority may also issue what is called a dissenting opinion. These basically say, 'We disagree with the majority on the final outcome of the case, and here is why.'

The purpose of concurring and dissenting opinions, like 'official' opinion of the court, is also forward-looking. It informs lawyers how each of the justices will likely vote in similar future cases. No two cases are exactly alike, and so lawyers will refer to all opinions to determine how the particulars of a new case match up to the particulars of previous cases; and whether those differences might affect how each of the justices will vote the second time around.

With all that said... on to the opinion!

The Opinion of the Court
The basic question before the Supreme Court in this case was, 'Does Congress have the power, under the Constitution, to make the individual mandate federal law?' For this to make sense, we must first understand what power Congress has under the Constitution; for it cannot simply pass whatever law it wishes (regardless of what its members on either side of the aisle think). Most people are familiar with certain prohibitions on Congressional action, such as those in the Bill of Rights. E.g., 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' But those prohibitions are not the only restrictions.

Article I, Section 8 of the Constitution spells out exactly what powers Congress has: the so-called enumerated powers. Any other legislative powers which you might imagine, other than those listed in Section 8, are, as clarified by the 10th Amendment, reserved to the States or to the people. In other words, if Congress cannot justify a particular law under one of the enumerated powers in Section 8 — even if the law does not violate the familiar Bill of Rights prohibitions — it has no power to pass that law. If challenged in court, it will be struck down as unconstitutional.

That was the challenge that ACA's opponents put before the Court: Congress had no power by which they could pass the individual mandate. The government responded that it did have the power — under two possible clauses of Section 8, in fact. We'll treat both of the government's justifications in turn.¹

Commerce Clause
The first justification given by the government was the Commerce Clause. Article I, Section 8, clause 3. This states, in brief, that Congress has the power 'to regulate Commerce . . . among the several States'. As is common in constitutional law, what superficially appears to be crystal clear language has been obfuscated by over two centuries of court decisions — most of which deal with admittedly difficult cases — leading to a rather complicated legal doctrine.

In the first century of the United States, the commerce clause was interpreted rather cleanly. If the law addressed the movement of goods, services, or monies across state lines, it was interstate commerce and could be regulated by Congress. If nothing crossed state lines, it was not and could not be regulated by Congress. (Individual states were, of course, free to regulate commerce within their boundaries. Remember, the federal government isn't the only government in the United States; just because Congress can't pass a law doesn't mean a state government cannot.). If you grew wheat but only sold that wheat to buyers within your state, you could pretty safely be free from Congress's power to regulate interstate commerce.

Then came FDR's New Deal programs. The New Deal affected a large part of 'politics as usual' and large chunks of constitutional law changed with it. One of those big areas of change was the Supreme Court's interpretation of the Commerce Clause. To make a long story short, the Court, partially in reaction to the United States' increasingly more national (and less local/regional) economy, expanded the scope of the Commerce Clause rather quickly. The end result was that Congress was now empowered under the Commerce Clause to regulate activities which affect interstate commerce, even if those activities were not themselves interstate in nature. In our wheat example, that meant that Congress could now regulate the harvest of wheat since that wheat might eventually be sold in another state.

This New Deal interpretation of the Commerce Clause persisted until 1995, when, in U.S. v. Lopez the Rehnquist Court struck down a law under the Commerce Clause for the first time in 60 years. In the opinion of that case the Commerce power is defined as 'the power to regulate those activities that substantially affect interstate commerce'. Not all that clear, but that's where it lies.

Thus, when the Supreme Court was faced with ACA, it had to ask whether the individual mandate is a regulation of activities which substantially affect interstate commerce. Now, to be clear, because the Supreme Court is the highest court in the land, it is not bound to follow its own precedent. If it wanted to effectively overturn the Lopez decision, it would be perfectly free to do so on its own; just as the Court during the New Deal effectively overturned previous decisions. There has been much ink spilled over when and how it's a good idea to stick to or rethink precedent. We won't discuss that here; I just wanted to note that possibility.

In the end, the Court found that the individual mandate did not regulate an activity that substantially affects interstate commerce. The key element in this portion of the decision was that the Court found that the individual mandate regulated inactivity, not activity. That is, the fee imposed by Section 5000A was on those who declined to participate in the commercial field of health insurance. 'If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.'

The Court quickly recognized that it has never been asked before whether the Commerce Clause covers inactivity — making the case one of 'first impression', to use the legal term. So even if the Court were to rigorously stick to precedent, it doesn't really have one to go on. Thus, the opinion engages in over 10 pages discussing whether the Commerce Clause should cover 'inactivity' as well as 'activity' and whether the individual mandate really does regulate 'activity' or 'inactivity'.

In deciding that the Commerce Clause should not be interpreted to allow the regulation of 'inactivity', the central argument is that it would be far too slippery a slope. As Roberts writes:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government's theory—empower Congress to make those decisions for him.'

Indeed, it could be very difficult for the Supreme Court to come up with some rule or standard for determining when Congress has gone 'too far', allowing the regulation of some 'inactivities' but not others. But it's not impossible; they've repeatedly crafted many rules and standards to avoid slippery slopes over the years. But it seems that Roberts was unwilling to devise such a rule and felt instead that it was better to find that 'inactivity' was left outside the scope of the Commerce Clause altogether.

Thus, the individual mandate could not be justified by Congress's Commerce Clause power.

Taxing Power
As does Roberts in his opinion, I'll pause here to clarify one important element of constitutional law. In order for a law to be constitutional, it need only fall under one of Congress's enumerated powers. Just because the individual mandate was not a constitutional exercise of Congressional power under the Commerce Clause does not mean that the law is unconstitutional. And the Court should interpret the law as an exercise of whatever enumerated power allows it to stand as constitutional. After all, the individual mandate clearly did not fall under Congress's power 'To establish Post Offices and Post Roads', but that does not mean the law is unconstitutional. Having said that, we proceed.

The next argument of the government was that the individual mandate could be upheld as constitutional under Congress's tax power. Under Article I, Section 8, clause 1, Congress has the power 'To lay and collect Taxes'.

The taxing power has a long and convoluted history which is further complicated by the 16th Amendment (the Income Tax Amendment). It involves complicated legal distinctions between direct taxes and indirect taxes which are really not all that important to what I think is actually going on in the case.² So I'll skip that bit and dive into the important bits. Basically all you need to know about that history is simply that Congress has a pretty comprehensive power to lay and collect taxes on just about anything.

In order to make the taxing power argument, the government asked the Court to view the individual mandate simply as a sort of a tax on people who do not carry a certain level of health insurance. Now, if you've been paying attention, you'll note that this is in conflict to what the government argued in the first section. There the government argued that it was not a tax, but was a regulation. If one did not comply with that regulation, a fine was assessed.

This is completely true, but doesn't really matter, legally speaking. Lawyers argue conflicting theories all the time before courts, something which you may already know if you watch enough legal dramas on TV. ('You should find the defendant guilty of murder in the first degree. But if you don't, you should find him guilty of murder in the second degree instead.') Doing so may make each individual argument appear weaker, but a court will not ignore a given argument just because it conflicts with other independent arguments.

Even so, the Court acknowledges that the law, as written, does not naturally read as a tax. It reads much more naturally as a legal requirement, and if one does not comply with that requirement, he is assessed a fine. 'An applicable individual shall...' And 'If a taxpayer . . . fails to meet the requirement . . . there is hereby imposed on the taxpayer a penalty'. Yes, the penalty is imposed on 'a taxpayer', but so are a lot of regulatory fines. Furthermore, when the law was originally debated in the public sphere, the President repeatedly argued that the individual mandate was 'absolutely not a tax increase'. Nevertheless, the Court reasons that if the individual mandate can 'fairly possibly' be interpreted as a tax, and if doing so saves the law from being ruled unconstitutional, it should be so interpreted.

In order to justify interpreting the individual mandate as a tax, the Court turns to a prior decision regarding the Child Labor Tax Law of 1919, which imposed a 'tax' on those who employed child labor (Bailey v. Drexel Furniture Co.). In that case, the law was determined not to truly be a tax for three reasons. First, the 'tax' was exceedingly heavy in relation to the infraction, which suggested it was a penalty. Second, the 'tax' was only assessed on those who knowingly committed the infraction, a requirement more typical of criminal penalties than of taxation. Third, the 'tax' was enforced by the Department of Labor, rather than a revenue-collecting agency, such as the IRS. Each of these criteria strongly suggested the 'tax' was not a tax after all, but a penalty for committing an illegal act.

The individual mandate fee meets none of those criteria, says the Court. It is not excessively burdensome, being less than the cost of health insurance; it is assessed whether someone knows he meets the criteria or not; and it is collected by the IRS along with the rest of one's income tax. Thus, the individual mandate can be interpreted as a tax. And this should not surprise us, the Court says, since there are all sorts of taxes that don't just raise revenue but also affect individual conduct. The obvious example is sin tax: taxes on cigarettes and alcohol. (In economic terms, this is called a Pigovian tax.)

Since the individual mandate can be interpreted as a tax, the final outcome of the case is settled. Congress was authorized by the Constitution to enact the individual mandate as part of its power 'To lay and collect Taxes'. The Court thus upholds the law as constitutional.

So to summarize, the law is constitutional not because the law regulates interstate commerce, but because it collects a tax.

Commentary
This is the part of the post where I give my opinion on what the Court decided in this case. You are completely free to disagree with anything I have to say from here on out. In fact, I welcome disagreement and discussion about the arguments I raise. Please feel free to discuss any of them with me in person or online. (Though I will note that I can only participate in an online discussion for so long before my brain explodes.)

Why Roberts?!
The first remark I want to make is something I mentioned above. Upon first hearing the news, I had no earthly idea why John Roberts was the deciding vote in favor of upholding the bill. If there's a single Supreme Court expert out there who correctly anticipated that one, I'd like to meet him and shake his hand.

First off, why am I so certain that Roberts was the deciding vote? It's pretty simple: Roberts was literally the middle ground between the two other groups of four justices each. There were four justices (Ginsburg, Breyer, Sotomayor, and Kagan) who signed on to a concurring opinion which argued that the law should be upheld as constitutional both as an exercise of the Commerce Clause and under the taxing power. There were likewise four justices (Scalia, Kennedy, Thomas, and Alito) who thought that the law could not be upheld under either power. Roberts was the only justice on the Court who thought that the law should be upheld under the taxing power but not under the Commerce Clause. Ironically, that opinion — which no one else shared — is going to be the opinion which is most read and referred to.

So why is it surprising that Roberts voted to uphold the bill? Roberts has mostly been considered a member of the conservative wing of the Court. (Personally, I don't think the justices can be so easily categorized as 'conservative' or 'liberal', but for argument's sake...) As Rehnquist's successor to the office of Chief Justice, Roberts has also been seen as Rehnquist's ideological successor, a New Federalist, dedicated to curbing the power of the federal government. The New Federalism movement was responsible, among many things, for the Lopez decision, which reined in an ever-expanding Commerce Clause.

So far, Roberts has been less zealous than Rehnquist in pursuing that New Federalist 'agenda'. As a consequence, he has been seen as more cautious than Rehnquist; as someone playing 'the long game' and taking advantage of his young age (only 57). That is, rather than curbing the power of the federal government in one fell swoop, experts have judged that that 'agenda' is one he will play out over a long career.

I have pored over the decision, trying to find some way in which this opinion jives with that biography. It simply doesn't. Opponents of the ACA will see it as upholding a violent power grab by the federal government, which would seem to fly in the face of a New Federalist agenda. And I can't even conceive of how this might play into the 'long game' theory. If Roberts is the sort of Chief Justice that he's been made out to be, this opinion would set back his supposed 'agenda' by quite a bit.

Rather, I think the book on Roberts needs to be rewritten. The hallmark of this case, to my reading, is a strong adherence to precedent. Any chance he gets, Roberts tries to ground his reasoning in past decisions in this opinion, reading them at face value, rather than spinning them to read how he would like. If you know the case law, it's very difficult to argue that he got the decision wrong, in that sense, even if you disagree with the precedent or with yesterday's decision.

I very much want to say that it's the sort of opinion that I would have expected Justice O'Connor to have written. (I'd actually be very interested to pick her brain about this case.) O'Connor was similarly something of an enigma during her time on the Court. She was early on pegged as a member of the emerging 'conservative wing', a supposed member of the New Federalists. But from time to time she could be found siding the Court's 'liberals', making her the swing vote in many close cases.

But a closer examination of O'Connor's opinions shows that she was not so much conservative in ideology as conservative in philosophy. That is to say, she was more interested in tradition and in prudential reform over time than she was in advancing a particular political ideology. She avoided decisions which would radically change legal doctrine and instead followed legal precedent when possible. I see the same thing in Roberts's opinion here.



So perhaps what experts have characterized as Roberts playing the long game is really just Roberts favoring incremental change to precedent. It seems Roberts isn't interested in advancing conservative politics but in maintaining prudence on the Court. Rather than characterizing Roberts's legal theory in terms of what he is driving towards, it should instead be understood as where he's working from. It's still difficult to say at this point, but it's something I hope to do in looking over his past opinions.

What Does The Decision Mean?
What the decision means in the near future is fairly simple. ACA is upheld and will proceed on schedule. There will likely still be challenges to the law, mostly in the form of religious freedom, related to the contraception/abortifacient controversy which has erupted in the past few months. But on the whole, if you supported the ACA, everything you were looking forward to will come to pass. On the other hand, if you opposed the ACA, everything you despised will also come to pass. And if you didn't know what to think about the ACA in the first place, well... that's an entirely different post. C'est la vie!³

The long term legal prognosis is a bit more difficult to determine. The Commerce Clause ruling is not terribly surprising and will not cause too many waves in the years to come. As I mentioned above, it was a case of first impression, meaning that the Court had never before addressed the issue of regulating 'inactivity' under the Commerce Clause. And it's unlikely that the government will anytime soon defend a law on those rejected grounds. So that won't have much of a tangible effect.

The effect of the taxing power ruling will easily have broader effects. Having just praised the decision for being well-reasoned, I'm afraid that Roberts's definition of what counts as a tax and what doesn't was sorely lacking. Lawyers and law professors will be wringing their hands for years to come, trying to parse the Chief Justice's words, trying to determine where that line lies. When is a penalty a tax, and when is it just a penalty?

There are two reasons why Roberts's reasoning here is so difficult. The first is because the opinion only judges the individual mandate by a negative definition. Referring to Drexel Roberts lists three things which a tax is not. Since the individual mandate is none of those things, he reasons, it might be a tax.

Ok. Problem. That's not how logic works. 'If A, then not B' (the formula in Drexel) does not imply 'If not A, then B'. For example, if I were to say 'If something is a mammal, then it is not a fish', that does not mean that 'If something is not a mammal, then it is a fish'. Proof: a bird.

Yet this is the logic that Roberts uses. Rather than giving a definition of what a tax is he fixates on three things it isn't, ignoring the possibility that there could be several other factors which invalidate something from being a tax. Contrary to his reasoning, he hasn't actually determined that the individual mandate is a tax.

But more aggravating is the fact that Roberts knows that he's not providing a satisfactory definition. In fact, to this he says, 'we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the "power to tax is not the power to destroy."' I don't think anyone was thinking that the power to tax was so complete that Congress could use it to destroy. But it would be useful to know how close to that line Congress can go. The question which every lawyer wants to know the answer to, in light of yesterday's decision, Roberts explicitly declines to answer.

In other words, we have no idea at this point whether the next 'penalty', 'fee', or 'fine' will be able to be characterized as a tax, or whether it will cross the line which Roberts declares is out there somewhere. Perhaps the next penalty for non-compliance will be deemed to be a tax. Perhaps not. We don't know. Keeping in mind the purpose of court opinions as forward-looking guides to informed decision-making, the opinion here fundamentally fails. Miserably so.

On the other hand, we do now know that commercial 'inactivity' can really only be effectively addressed by commerce through the channel of taxation. Thus, they cannot finely regulate such 'inactivity' in the same way they regulate the manufacture of meat or the trading of stocks.

So Why Do I Disagree?
So far I've explained why I think the opinion is very well grounded in existing law while also being deficient in a particularly important respect. But I've said nothing yet on whether I agree or disagree with Chief Justice Roberts. As I spoiled in the first few paragraphs, I happen to disagree. The short version of why I disagree:

The opinion carries our legal system further along the path away from principled process and form towards an ends-focused pragmatism.

Allow me to explain. The Anglo-American system of law is composed of two basic parts: substantive law and procedural law. Substantive law is the meat of law. It is the part of the law that makes murder illegal. It is the part that prescribes the penalty for murder. It is what distinguishes murder from manslaughter. Substantive law describes the rights and duties of individuals, groups, and institutions.

Procedural law is what determines how the substantive law is enforced and plays out. It determines how investigations are conducted, what happens in a court room, and how laws are made. Procedural law describes how the rights and duties are protected and enforced.

In many ways, procedural law can trump substantive law. For example, imagine a person is absolutely known, without any doubt whatsoever, to have committed murder and is convicted. But imagine that the trial does not comply with procedural law (perhaps there was jury tampering), the conviction may be invalidated.

Similarly, imagine that a genius politician has come up with a foolproof law which would eliminate poverty in America and to which everyone agrees. If the law is not enacted with the right procedure — passed by both houses of Congress and signed by the president — a court will not consider it a valid law and will not enforce it.

In each example, the application of the substantive law was clear and the ends which it would achieve were indisputably good. Taken alone, it would be good to convict the known murderer. Taken alone, it would be good to eliminate poverty. But because our legal system values the process as well, those good ends are not sufficient to overcome a deficiency in the process.

In past ages, procedural law was a much larger part of the law. One could almost say that legal battles were battles over process rather than over substance. The complicated writ system of England (and still used in American until the past century) was a complicated scheme of procedural law. Cases were almost won or lost based on which side made the least fatal procedural errors. That's a caricature, of course, but it's basically true. In recent decades, procedure has been significantly streamlined. But it's not gone entirely. And that's a good thing.

One of the reasons why process matters is because it guards against abuses of the substantive law. This value is rooted in the writings of William Blackstone, an 18th-century English legal scholar, who famously wrote, 'better that ten guilty persons escape than that one innocent suffer.' Process and form are the way our legal system ensures that protection to the citizenry. Even Old Testament Mosaic law had procedural law: 'A single witness shall not suffice against a person for any crime or for any wrong in connection with any offense that he has committed. Only on the evidence of two witnesses or of three witnesses shall a charge be established.' (Deut 19:15)

In essence, our legal system says that justice is not served if both the substantive and procedural aspects of law are satisfied. In reading yesterday's opinion, I see Roberts downplaying the importance of process and form and yielding to what he sees are defensibly good ends.

The reason why I say this is because Roberts fails to make a distinction that the minority makes, a distinction which is important in this substance/form dichotomy. Roberts looks at the individual mandate and decides that, even though the entire form of that law is non-tax, because its substance is like that of a tax, that's good enough to be a tax.

The minority, on the other hand, states, 'The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.' Though they appreciate the effort of Roberts and the majority to interpret the law in the best light possible, they quote another case to say, '[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .' And like the majority, I think that is what is being done.

Congress could have achieved the exact same effect as the individual mandate by raising everyone's taxes and then granting a rebate to those people who have health insurance. In terms of the ultimate effects, such a law would be almost no different from the law they did pass. But Congress didn't choose that form (probably because they didn't want to have to try to navigate the politics of passing a tax increase, a probability supported by the fact that the President and members of Congress repeatedly stated, during the debate over the bill, that the individual mandate was emphatically not a tax).

So the question I ask is whether it matters that Congress passed a bill whose language strongly suggested that it was a regulation-and-penalty, rather than a tax increase? Does it matter that they chose to pass a bill which was regulation-and-penalty, rather than a universal tax increase with widespread opportunity for a rebate? I argue that it does.

The minority gives one main reason for why it should matter: because it makes the Court into a judicial tax-writer. That is, it extends Congress's legislative powers to effectively regulate and penalize — to an unknown extent, since the tax/non-tax line is undefined — and leaves it to the courts to then declare it a tax in a last-ditch effort to save the bill. And the Court wisely does not want to be the unpopular branch which is now in the business of writing tax law. While I sympathize with this position — who does want to be the branch to raise taxes?? — I do not think it sufficient.

The distinction between these various options matters because our legal system values process. It is our principle that even if you get the 'right result', if you didn't get there along the 'right path', justice was not served. Process and form matters because it matters; not because it necessarily produces better results. It matters because it is a fundamental principle of the rule of law which the system is pledged to heed. Our legal system is a mix of pragmatism and principle, and process is a bedrock of its value of principle.

I could give a lot of reasons why I think we should continue to respect the importance of form and process, but ultimately what matters to me is whether we still are interested in the fundamental importance of form and process in our legal system. Or are we becoming a society where it is deemed good and just that an agreeable and 'right' result was achieved, even if one fudged his way in getting there?

I'm going to have to stop myself at this point, otherwise I'm liable to go on and on and on. I'll just conclude by restating this: I disagree with the decision of the Court. But unlike many conservatives, I don't disagree because I want to see ACA go down. I do happen to think it's a bad policy,⁴ but I think there's no way around the fact that Congress is perfectly able to achieve the effect it did — a fact which I don't think many conservatives properly recognize. I think Roberts realistically recognized this fact.

No, I disagree with Roberts's opinion because I think it sacrifices our legal values of process in order to get to the 'right result', ignoring the fact that the 'right path' was not taken. That, to me, is unjust. And I fear it is symbolic of a general trend in our legal system and perhaps even society at large.

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¹The government also argued that the individual mandate could be constitutional under the Necessary and Proper Clause. Since this is a less important argument, for the sake of space I have declined to address that. I'd be happy to discuss it with anyone individually, however.

²As with the Necessary and Proper Clause, I'll gladly discuss that history with anyone individually.

³A brief note: the Supreme Court, in upholding the law, was able to avoid the issue of severability. Severability is a principle which governs decisions when part of a law is struck down as unconstitutional. If the individual mandate had been struck down, the Court would have then had to ask, 'Is the mandate an integral part of the ACA, such that if it dies, the rest of the law is neutered and makes no sense? Or is it severable from the rest of the ACA, such that the rest of the ACA can still operate effectively?' If part of a law is found to be severable, then the rest of the law would stand, even while the unconstitutional portion is struck down. If it is not severable, then the entire law is struck down altogether. But as I said, since the law was upheld, the Court never needed to address this fact. One of the judges in the circuit courts, Judge Vinson, had ruled the individual mandate was unconstitutional and not severable from the rest of the ACA. His decision was obviously overturned by the Supreme Court's decision. The Supreme Court's dissenting minority, however, in finding the individual mandate unconstitutional, also found it non-severable: they would have struck down the entire ACA.

⁴Again, this is something I'd gladly discuss with anyone.