What Does the Supreme Court’s Decision Upholding “Obamacare” Mean for the Gay Community?

Lose the Battle, Win the War

Speculating about what motivated Chief Justice Roberts to side with his more moderate-to-liberal colleagues may be fun, but it misses one salient point: except for the jurisdictional question (where the Court was unanimous) and the end result (the ACA survives), the Chief Justice, in fact, never sided with Justice Ginsburg and her colleagues on the left. Indeed, the Chief Justice came to his answer in a way anathematic to liberals and consistent with conservative legal theory of the past few decades.

As we discussed yesterday, the Court upheld the ACA as a legitimate exercise of Congress's taxing power, but 5 justices rejected the idea that the individual mandate was permissible under Congress's authority to regulate interstate commerce. How we get to a pro-ACA result may not worry some progressives, but it worries me.

Since the 1970s, conservative legal scholars and jurists have been trying to narrow the scope of federal interstate commerce power, which ballooned when the Court acceded to President Franklin Roosevelt's will and started upholding New Deal legislation. Before 1937, a conservative Court kept tossing out progressive legislation — a maximum hour in a workday law here, a minimum wage law there, even a public works program — as a violation of individuals' freedom to make their own contracts in a free market. Imagine what it would be like if laws like the ACA had been struck down every 600x325xhugh7_photograph.jpg.pagespeed.ic.tM3uE4APEkother month! Progressive legal scholars like Louis Brandeis and Felix Frankfurter rejected this intransigence. The judiciary, they said, should exercise restraint when it came to the will of the elected branches in passing social and economic legislation. After all, Congress's power to regulate interstate commerce gives it wide latitude. And, after the "court packing" scheme and FDR's appointments to the Court, there was very little that did not fall under interstate commerce — prices, wages, Social Security, health care, and many other areas too numerous to list. (In 1939, the Court had the beginnings of the New Deal majority) (left).

Conservatives have been fighting back for decades, seeking to roll back Congress's power under the Commerce Clause. And, they have started to succeed. In Lopez, for example, the Court said that the Commerce Clause did not give Congress the power to ban guns from schools. States could do that; Congress could not because bringing a gun to school has nothing to do with interstate commerce. Under pre-Lopez Commerce Clause precedents, though, the interstate commerce rationale would have been easy: the gun, parts of it, most likely came from another state and Congress has an interest in cutting off the use of weapons that you obtain as a result of interstate commerce.

Yesterday's decision rejecting Congress's power to order Americans to buy health insurance under the Commerce Clause may further narrow the federal government's authority to pass social and economic legislation. Not buying health insurance clearly has an effect on interstate commerce, as Justice Ginsburg wrote in her concurrence/dissent. But, that effect was not enough to reach the threshold for the new Commerce Clause. In this way, the ACA decision was a victory for conservatives. They may have lost the battle on health care, but they are winning the war on the reach of federal power.

The Double Standard Canard

Progressives are cheering a "breath of fresh air," to use one congressman's phrase, from a conservative Court. Afraid the Court would reject the ACA, many on the left were anticipatorily decrying the conservative majority's "judicial activism" and demanding "judicial restraint." To my disappointment, even President Obama got into the act. But, after the pro-ACA decision came out, conservative commentators on FOX News challenged liberals: if you want the Court to respect the will of the people when it comes to health care, you have to accept it in other areas, like on DOMA and gay marriage.

That misleading argument only befits simpletons. Progressives can honestly argue for upholding the ACA and overturning DOMA while retaining intellectual integrity.

The ACA is a piece of economic legislation. DOMA discriminates against a traditionally unpopular group and does so without reason. Judges should consider those laws differently. On the one hand, long-settled precedent tells us that judges evaluate economic legislation passed pursuant to Congress's commerce power for a rational basis, the most permissive form of judicial review. The law must regulate activity that has a substantial effect on interstate commerce and be rationally connected to that effect. On the other hand, laws that classify on the basis of sexual orientation should receive, at a minimum, so-called "rational basis plus," or a more searching form of review. I agree with President Obama that state action that discriminates against gays should receive heightened scrutiny, but even if that argument never wins the day, DOMA must pass a tougher standard of review than the ACA.

And, that makes sense. The ACA is a legitimate exercise of some Congressional power. DOMA is not. DOMA was passed with little Congressional investigation, no hearings, and based on pure fear and homophobia. The Republicans' proffered rationales — promoting opposite-sex marriage, maintaining the status quo, protecting children — have nothing to do with DOMA's denial of federal benefits associated with existing same-sex marriages. It is hardly a jump to say that the ACA can stand while DOMA cannot.

The HIV-Positive Community Will Benefit, But Not Enough

The pre-ACA health insurance market largely failed the nearly 1.2 million Americans with HIV. Free to charge whatever they want, insurance companies extorted huge premiums out of applicants with HIV; free to deny coverage to those with pre-existing conditions, many companies simply said no to HIV-positive Americans; and, free to cap benefits, insurance providers stopped paying for life saving procedures and drugs when the costs got high. What’s more, the “patchwork of public programs,” according to Lambda Legal’s HIV Project Director Scott Schoettes, created a woefully inadequate safety net, leaving approximately 30 % of the HIV-positive population uninsured. 

Many of the ACA's reforms will put an end to the debilitating discrimination that is exacting a staggering public health toll. But, by holding that the federal government cannot withhold all Medicaid funding from those states that refuse to reform their Medicaid programs in accordance with ACA reforms — thus, turning the Medicaid expansion into an optional program — thousands of Americans with HIV will still be left out in the cold. If Red States decline to expand Medicaid in their states out of some ideological intransigence, their HIV-positive citizens will suffer. Therefore, our lobbyists and allied lawmakers should work toward restoring the Medicaid expansion in some way, either through using a less onerous stick to ensure compliance or by expanding access to the program in other ways. Unfortunately, given the current Congress, both options seem unlikely.


As with most important legal decisions, there are multiple interpretations and multiple victors. Sebelius preserved the ACA, and that irks conservatives, but it did so in a way that should please conservatives in the long run. It also gut the ACA's Medicaid expansion, which will have deleterious effects on the HIV-positive community. But, these developments should not hide the facts that (a) the President's signature legislative achievement survives, and (b) upholding the ACA is very much consistent with a judicial philosophy that will strike down DOMA and other antigay laws.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.



  1. Nicholas says

    Great analysis of the decision, Ari, but I think there is one angle you overlooked in this. That the court upheld the PPACA by a 5-4 majority is not that surprising, but what is surprising is that it wasn’t Kennedy who joined the court’s so-called “liberals” in upholding the law. Roberts’ motivations for upholding the law in a conservative light are pretty clear; he likely wanted to protect the integrity of the court by avoiding a political attack on the signature achievement of a Democratic administration. When Kennedy joined the conservatives, he demonstrated that he is uninterested in this kind of restraint, and far less concerned with the court’s public reputation than Roberts. This is good news for those of us who hope that he will join the court’s liberals in striking down section 3 of the DOMA; his fear a public backlash against his decision seems less likely to restrain him than it did before this decision was published, and, as striking down DOMA would only be following his own logic in Romer and Lawrence to its logical conclusion, that would seem to be the only possible motive for him to uphold the law.

  2. say what says


    nicholas I think kenedy’s stance in yesterday’s rulling shows that kenedy is a libertarian

    people alway assumed he was a moderate conservative and looking back over where he has shown being a moderate generally is with social issues so CU and the ACA issues point out kenedy isnt a moderate at all just a Libertarian

  3. peterparker says

    Ari is such an asset to towleroad! I love his clear explanations of legal subtleties that would elude those of us without law degrees. Thank you, Ari!

  4. NVAgBoi says

    Ari, I am actually surprised to see that you made no mention of the facet that the arguments made by Chief Justice Roberts in his opinion- as well as many of those put forth by the conservative dissenters in the ACA case- should, in theory and logic, bode well for DOMA. Here the justices on the right, in making their bid for dramatic limits on the federal government impinging upon the powers enumerated to the States and the restricted scope of Federal powers, will, in the current state of DOMA litigation, have to do back-flips in order to not impugn the arguments they made regarding ACA.

    Thoughts? Am I just barking up the wrong tree?

  5. MiddleoftheRoader says

    I have 3 points to make in response to Ari’s analysis of the health care decision.

    1) It’s not really accurate to say that CJ Roberts NARROWED the scope of Congress’s power under the Commerce Clause. Even the Administration conceded that none of the Court’s prior case precedent under the Commerce Clause dealt with the situation here — namely, no prior case ruled that Congress has the power under the Commerce Clause to require Americans to buy any specific product or service from a private seller. It would be more accurate to say that CJ Roberts REFUSED TO EXTEND the prior case precedent and its rationale to cover the situation involving health care. The result may be the same, but the reasoning is very very different — no prior Court decisions were overruled, it’s simply that they weren’t expanded.

    2) What is most amazing about the opinion of CJ Roberts — and it really raises the question of “why” he undertook this analysis — he actually “reached out” and used Congress’s right to levy “taxes” as the basis for upholding the health care law. We need to keep in mind that all during the debate in Congress, the Administration specifically argued that the “penalty” for not buying health insurance was NOT a “tax”. It was said over and over again. Yet CJ Roberts upheld the law on the basis that the “penalty” really was a “tax” and therefore is valid. This is why the Court conservatives (Scalia, Thomas, Alito & Kennedy) were so upset with him.

    3) Finally, I have a different view on the impact of CJ Roberts’s opinion on DOMA: I think it provides some strong language that would support striking down DOMA as an unconstitutional interference with state rights (let me admit that this strong language could also potentially be harmful to the argument that all states are required to recognize marriages performed in any other state — but there are other ways around that issue). In finding the Medicaid portion of the health law to be unconstitutional in regard to loss of all Medicaid funds for state non-compliance with the health law’s requirement for expanded Medicaid coverage, CJ Roberts focused on the power of Congress to supplant state authority. Please excuse these long quotes, but I think it’s important to present them here so that readers can understand exactly what CJ Roberts said that could be helpful in finding DOMA unconstitutional. CJ Roberts said:

    “Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. “[W]here the Federal Government directs the States to regulate, it maybe state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”

    CJ Roberts also said:
    “The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions …. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer. That insight has led this Court to strike down federal legislation that commandeers a State’s legislative or administrative apparatus for federal purposes. See, e.g., Printz, 521 U. S., at 933 (striking down federal legislation compelling state law enforcement officers to perform federally mandated background checks on handgun purchasers); New York, supra, at 174–175 (invalidating provisions of an Act that would compel a State to either take title to nuclear waste or enact particular state waste regulations). It has also led us to scrutinize Spending Clause legislation to ensure that Congress is not using financial inducements to exert a “power akin to undue influence.” Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937). Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when “pressure turns into compulsion,” ibid., the legislation runs contrary to our system of federalism. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” …. That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own. Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.”

    After reading the above language from CJ Roberts, we should keep in mind that one of the arguments in the First Circuit DOMA case was made by Massachusetts, which said that DOMA was unconstitutional because it interfered with Massachusetts’ definition of “marriage”. According to the First Circuit opinion, Massachusetts said that “DOMA will revoke federal funding for programs tied to DOMA’s opposite-sex marriage definition-such as Massachusetts’ state Medicaid program and veterans’ cemeteries….By combining the income of individuals in same-sex marriages, Massachusetts’ Medicaid program is non-compliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to
    rescind Medicaid funding to noncomplying states.”

    In finding DOMA to be unconstitutional, the First Circuit — ANALOGOUS TO WHAT CJ ROBERTS SAID — stated the following:
    “It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to
    state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality
    and culture.”

    The First Circuit then said that DOMA must face a special level of scrutiny because of how it affects the states:
    “The denial of federal benefits to same-sex
    couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative
    burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’
    effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

    In short, one can find strong language in CJ Roberts’s comments about the limited power of Congress to intrude on state matters. And one can see the possibility that CJ Roberts would likewise find that DOMA improperly interferes with a state’s historic power to decide who is and is not married. That may not be the broadest and best way to un-do DOMA, but it does provide a path for someone like CJ Roberts — who is not a member of the Court’s liberal wing — to help us get rid of DOMA.

    Sorry for the long post!

  6. Steven says


    Given SCOTUS’ skepticism of the Commerce Clause, what effect, if any, do you think this ruling may have on the new (2009) hate crimes statute?


  7. Bingo says

    “It also hit the ACA’s Medicaid expansion” — you’re the only one who thinks so. The incentives behind the expansion are very powerful and all hospitals will be clamoring for it.

  8. Bingo says

    Middleoftheroader: this decision was not about the Feds intruding in an area reserved to the states. Rather, it is understood that the Feds can try to get a state to act in a way the Feds want (like raise the drinking age or expand Medicaid coverage) but the court draws a line: the Feds can influence but must stop short of coercion, and the court found that ACA was coercive, so reined in the amount a state loses by not expanding Medicaid.

    There’s a huge duff between deciding whether a financial penalty is coercive or not and the issues in the DOMA cases.

  9. MiddleoftheRoader says

    Bingo, I agree that “coercing the states” through a cut-off of federal funds (the issue in the health care case) is different from interfering with the right of states to determine standards for marriage. But if you read the broad language in CJ Roberts’ opinion when he describes federal vs. state rights, his broad language (that I quoted above) supports the over-arching principle (apart from financial coercion) that the feds cannot commandeer certain state prerogatives.

    In fact, CJ Roberts cites the case of Printz v. United States, 521 U.S. 898. He cites this case because it contains the broader, over-arching principle he is trying to make in the health care case about the limits of federal power over the states — even though Printz was NOT a spending / financial coercion case. And if you read the First Circuit case that struck down DOMA, you will also see that Judge Boudin also cites the Printz case. Yes, the facts and laws are very different in the health care case and in DOMA, but the over-arching principle that CJ Roberts and Judge Boudin are concerned with is how much the feds can push around the states. And so what CJ Roberts has said in the health care case can, as the First Circuit case shows, be part of the rationale to overturn DOMA.

    My own wish is that DOMA would be struck down on a broader rationale than “state rights”. But if the only way to get a fifth vote (like CJ Roberts) on the US Supreme Court for striking down DOMA is for him to use his “state rights” rationale (Printz and other cases), then I’ll take it next year (when the DOMA case may reach the Court).

    The other thing we need to keep in mind: clearly CJ Roberts saw the writing on the wall that the health care case would be part of his legacy, and while he may disagree with the means of achieving health care for (almost) all (i.e,, he probably doesn’t like the individual mandate), he also probably didn’t want to be part of the ultra-conservative minority that would set aside this landmark legislation. One can only hope that he sees DOMA in the same light — in time, same-sex marriage will be accepted and DOMA will be gone (by Congress or by the Supreme Court), and let’s hope that CJ Roberts casts a vote to strike down DOMA in part because of his legacy, even if he relies on the “state rights” rationale to strike it down.

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