Gay-marriage ruling: Old America conceding to New America?

Gay-marriage ruling: Old America conceding to New America?
People celebrate in front of the US Supreme Court after the ruling in favour of same-sex marriage June 26, 2015 in Washington, DC.
PHOTO: AFP

Here's what last week's US Supreme Court decisions signify: Old America has conceded to the New America.

The New America is the coalition that came to power with President Barack Obama in 2008 and gave him the winning majority. It's a coalition of groups marginalised for most of US history: racial and religious minorities, immigrants, young people, gays, single mothers, working women and unchurched Americans who claim no religious affiliation.

What holds the coalition together is a commitment to diversity and inclusion. Precisely the values the Supreme Court affirmed with its Obamacare decision on Thursday and its gay-marriage ruling on Friday. "We finally declared," Obama said, "that in America, healthcare is not a privilege for a few but a right for all." That's inclusion.

Former Secretary of State Hillary Clinton is trying to rally the New America behind her candidacy for president. She tweeted the word "HISTORY" in rainbow colors last week to signify the rainbow coalition.

The Old America capitulated. But not without protest. Justice Antonin Scalia offered this scathing dissent: "If I ever joined an opinion for the court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons . . . to define and express their identity,' I would hide my head in a bag."

Scalia was expressing contempt for identity politics. Identity politics is at the core of the New America.

The Supreme Court has always been a lagging indicator of political change. It was designed that way. The House of Representatives is the branch of government most sensitive to popular sentiment. Its members are elected every two years. The president is elected every four years. Senators are more insulated. They're elected for six years.

Supreme Court justices serve for life. They are not elected, and they can't be recalled. That's supposed to insulate them from popular pressure. Of course, politics has a lot to do with how justices are nominated and confirmed. But it's the politics of long ago. Two current justices (Anthony Kennedy and Scalia) were nominated by President Ronald Reagan in the 1980s. Another, Clarence Thomas, was chosen by President George H.W. Bush in 1991. Ruth Bader Ginsburg and Stephen Breyer were picked by President Bill Clinton in the early 1990s.

Altogether, five justices were chosen by Republican presidents and four by Democratic presidents. The Democratic justices picked up one Republican vote on the same-sex marriage decision (Kennedy) and two Republican votes on the health-care decision (Kennedy and Chief Justice John Roberts Jr.). With those rulings, the Republican-majority court granted legitimacy to the New America.

The decisions are being met with resistance, of course. That's always the case with controversial Supreme Court decisions - racial integration in 1954, abortion in 1973. The Republican Party has become a resistance movement determined to disempower the New America. Which raises the stakes enormously for the 2016 election.

Obama was not entirely accurate when he said the court defined healthcare as a "right." In its 2012 decision upholding the Affordable Care Act, the court stated that it was not granting any constitutional right to healthcare. It ruled that healthcare is a benefit. The benefit was granted by Congress and the president, and it can be taken away by Congress and the president. Just not by this president.

The leader of the ultraconservative Club for Growth said, "It's now up to Congress . . . to repeal Obamacare, and Congress should continue to do so until there is a president who is willing to sign that repeal." All the contenders for the Republican presidential nomination have promised to do exactly that. Repeal can happen if one of them wins the election because then Republicans will almost certainly retain control of Congress. Former Florida Governor Jeb Bush, for example, vowed "to repeal and replace this flawed law" if he succeeds Obama in the White House.

Resistance to the same-sex marriage ruling will be more difficult because the court did declare it a constitutional right. Conservatives are now rallying to the cause of "religious freedom" by arguing that Americans should not be forced to violate their religious convictions by accepting same-sex marriage.

Several states have already passed laws allowing public officials to refuse to authorise same-sex marriages if it offends their religious convictions. Some have passed laws allowing businesses to refuse services to gay couples on the same grounds. That's discrimination. We already saw a strong blowback from business when Indiana tried to pass a "religious freedom" law.

Wisconsin Governor Scott Walker, who is a strong favourite of many conservatives, said, "The only alternative left for the American people is to support an amendment to the US Constitution." That will never happen when nearly two-thirds of Americans have come to favour same-sex marriage.

The backlash brings to mind an old Arab proverb: "Dogs bark, and the caravan moves on." The dogs are barking. But this caravan is moving on.

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