Columns » Ernest Dumas

GOP delivered marriage, health



Every word written in the vast collection of judicial opuses in the gay-marriage and Obamacare decisions last Thursday and Friday were penned by the Supreme Court's five bitterly divided Republican justices.

The four Democrats — two appointed by Bill Clinton and two by Barack Obama — helped form the majority in both cases, but they had not one thought to add to Chief Justice John Roberts' logical treatise upholding fundable tax credits for people buying insurance under the Affordable Care Act or Justice Anthony Kennedy's passionate discourse giving same-sex couples equal rights to enjoy the fruits of marriage.

Kennedy, you will recall, was put on the court by President Ronald Reagan and Roberts by George W. Bush. Republicans also delivered all five dissenting opinions.

If that seems remarkable, it is also logical. Both cases were Republican shows and the two issues have driven the evolution of Republican strategy in the Obama era.

That will end with the 2016 elections and you won't hear much of either issue ever again. The country's thinking has moved leagues on both Obamacare and same-sex marriage so that for the first time a majority of Americans have a good opinion of the health reforms and 60 percent of them favor marriage equality. They discovered that the sky didn't fall when the health law was implemented as all the ads had predicted and that the economy had actually taken a leap rather than fallen into a depression. Mike Huckabee will announce after the next natural disaster that it is God's punishment for legalizing gay marriages, but most people will cease to be offended at gay marriages.

Let's take them up in the order of the decisions.

King v. Burwell, the Obamacare case, came about after a Republican lawyer plowing through the massive act found a phrase which, if read alone, could be interpreted to mean that the law did the opposite of what every member of Congress who voted on it, pro or con, and every interest group involved in drafting or fighting the law thought. That sentence could be read to mean that Obamacare prevented poor people from getting insurance rather than helped them.

The tax subsidies for low-wage earners and the other major elements of Obamacare were borrowed from the Republican health bill of 1993-94, sponsored by, among others, several Republican senators who were still around in 2009 and helped craft the subsidies for low-income insurance buyers. The GOP leadership then told them they had to stop aiding the Democrats in an achievement that might rank with Medicare and Social Security.

Drafting glitches are common in every legislative body. Our own state Constitution has said for a century that the legislature can amend the Constitution without a vote of the people, but the courts said the drafters obviously were just careless with the wording and let it go. Every year, congressional writing glitches are fixed by "technical-correction" bills that are passed without ceremony, but the only technical corrections the majority will allow on the Affordable Care Act is repeal.

Justice Roberts, joined by Kennedy and the four Democrats, said the court always gives deference to what a legislative body intended to do rather than give life to a vague phrase that does the opposite. He noted that the preamble to the act made insurance for everyone as the goal.

For many in Congress the decision was a relief. Eight million Americans would have lost their insurance and seen tax increases as well, and the party had no unified approach for dealing with it.

The trajectory of marriage equality is even more of a Republican story, insofar as partisan involvement can be measured. Democrats have been a passive force that simply followed changing public attitudes. Obama and the Clintons have come around only the past three years.

A little history. A right-wing legislator in California put an initiated act — Proposition 6 — on the ballot in 1977 to ban gays and lesbians from teaching or working in California schools and also anyone who favored letting them teach. When Gov. Ronald Reagan, who had a gay son, came out against the proposition, gay Republicans formed an organization — Log Cabin Republicans — to fight the proposition. Voters defeated the initiative, the first victory for the fledgling gay-rights movement. The Log Cabin Republicans became a national organization. Their premise was that Abraham Lincoln founded the Republican Party on the philosophies of liberty and equality and it was the party of inclusiveness.

When the movement embraced the strategy of having homosexuals live openly and "outing" closet homosexuals in prominent places, one of the first targets was Terry Dolan, the head of the National Conservative Political Action Committee (NCPAC), which was having a huge impact on the conservative movement by exploiting a loophole in the federal campaign law allowing independent groups to make political attacks on behalf of Republican candidates without exposing them. Dolan, who had attacked gays and lesbians, never acknowledged being gay, but founded an activist group of gay and lesbian Republicans and died of AIDS complications in 1986.

You know the recent history: the gay "scandals" involving Republican members of Congress; the outing, voluntary and otherwise, of gay and lesbian children of prominent Republicans like Dick Cheney, Phyllis Schlafly and Alan Keyes; the steady conversion of prominent Republicans like National Chairman Ken Mehlman and U.S. Sen. Rob Portman of Ohio who said marriage equality aligned with Republican ideals.

Then there were the big guns of the war: Ted Olson and Anthony Kennedy. Olson, the Republican superlawyer who was Reagan's counsel in Iran-Contra, was the man who persuaded the Supreme Court to make George W. Bush president in 2000 and became his solicitor general and who filed the California lawsuit that forced the marriage issue onto the national agenda and to the Supreme Court for the first time. Kennedy, Reagan's other favorite lawyer, was the justice who delivered all four gay-rights victories, striking down anti-gay laws in Colorado (1996) and all state sodomy laws (2003) and then the two cases (2013 and 2015) that forced governments to recognize same-sex marriages.

If it cares to, and I think the day will come, the GOP can claim universal health insurance and gay marriages as Republican fait accompli.

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