Is America giving up on our constitutional democracy?
In two momentous decisions last week, the unelected U.S. Supreme Court irrevocably changed a core definition of marriage understood by human beings since the dawn of civilization and rewrote a landmark act of Congress to include power and authority it specifically did not provide.
In "an opinion lacking even the thin veneer of law," five unelected, unaccountable judges created a previously unknown constitutional right to same-sex marriage. Instead of applying the law, five justices codified their own policy preferences by finding that "the Constitution promises liberty to all within its reach."
That platitude is so broad it could convert any act of liberty or license — illicit drug use, euthanasia — into a constitutionally protected right. The fundamental concept of marriage has been a gender-differentiated union of one man and one woman. Under the court's legalese, if one of those two core concepts (gender differentiation) can be changed, why can't the other defining feature — a marriage between two people — be changed as well? Will it not be a unconstitutional denial of a liberty under the due process clause of the 14th Amendment to prevent an individual from marrying two, three or more persons?
The court's decision does a major disservice to an America engaged in vigorous discourse on the subject of same-sex marriage in just the way our founders intended — state by state. If we as Floridians wanted to replace the amendment we added to the Florida Constitution just seven years ago that defines marriage between one man and one woman, we could have. And based upon current views, it probably would have passed in the near term as it has in 11 other states.
The rough and tumble process of democracy where Americans persuade their neighbors to change their views and the law is healthy and proper. Democracy gives due process to those who lose the argument and brings us closer together even as we tackle difficult subjects. When five unelected judges through judicial fiat "steal this issue from the people," the democratic process is short-circuited to everyone's disadvantage.
In another opinion on health care, the court made an equally breathtaking grab at congressional power. The Affordable Care Act provides tax credits to purchase health insurance for individuals between 100 percent and 400 percent above the federal poverty line. The health insurance is offered through health care exchanges, mostly online. The law provides that an individual may receive tax credits if he or she enrolls in an insurance plan through "an exchange established by the state."
"State" is defined as "each of the 50 states and the District of Columbia." Several states, like Florida, have through their elected officials chosen not to establish an exchange. In these states, the federal government has done so. The issue before the court was whether the law provided for tax credits in exchanges not established by the states but by the federal government.
In analyzing a statute, the first rule for a court is to determine whether the statute is ambiguous. Why? If a statute is clear, a court's addition, subtraction or modification of the statute infringes on Congress' exclusive constitutional authority to make the law. Here, the law specifically provides that tax credits are awarded in an insurance plan in "an exchange established by the state." It does not provide that tax credits are available in an exchange established by the federal government.
Seem clear? Not to the Supreme Court.
According to the majority, those subsidies should be offered in exchanges established by the federal government because the term "established by the state" is unclear and should be interpreted to include the term "federal government."
Really? As Justice Antonin Scalia said in his dissent, words no longer have meaning if an exchange that is not established by the state is now deemed to be established by the state.
When our highest court uses recent popular sentiment to find new constitutional rights or rewrites a law enacted by the people's representatives to include powers it clearly did not provide, our liberty is at stake. If a new right needs to be established or a law needs amending, it is up to the people's representatives in Congress — granted by our Constitution "all legislative powers" — to do so. For those who applaud the recent decisions based upon their outcomes, they should keep well in mind that the same overreach may be delivered in the future by a court with different and contrary policy beliefs.
George LeMieux is chairman of the board of the Gunster law firm and served as a Republican U.S. senator, governor's chief of staff and deputy attorney general. He wrote this exclusively for the Tampa Bay Times.