Supreme Court and Equal Marriage

For thousands of years, all definitions of marriage have defined marriage as the union between male and female only. Yet, today in the US, same sex marriage has become legalized in 36 states. (Baker, 16, 2015) Conservatives believe they should wait for democracy to play out for gay marriage to be legalized whereas others believe the 14th amendment protects homosexuals under the equal protection clause. Due to a strong divide in public opinion, the justices are afraid of facing backlash from conservative states if they rule in favor of gay marriage. Should the justices decide on such an important issue instead of letting the people decide?

Key Issues

Precedents/ Judicial Activism & Restraint

Should the justices strictly adhere to precedents (judicial restraint) or should they actively make policy to reflect cultural changes (judicial activism)? People against gay marriage argue that marriage is a thousand year tradition that has solely been defined as between a man and a woman, even in Ancient Greece, where homosexual practices were common (Baker, 10, 2015). However, proponents for change argue that the definition of marriage has changed with social norms, and that the Fourteenth Amendment guarantees equal protection to all groups, hence justifying legalizing gay marriage for all people. (Baker, 20, 2015)

National supremacy/ federalism

It is controversial for the government to change the legal code of the states that do not yet support gay marriage. Vice versa, the federal government would make gay marriage illegal again in 36 states were it to ban gay marriage. Federal law is generally considered supreme to state law. Should states have the “right” to determine their own laws based on their differences in political culture? In addition, states should have to recognize people as married if they were married in other states due to “full faith and credit”, but that would be equivalent to states making laws for other states. The system essentially would have a loophole where people can get married in another state to be designated as married in a state with no gay marriage.

Justices’ Opinions

Haha I control the right
of all gays to marry ;D

Justice Breyer and Sotomayor hold a strong stance in favor of gay marriage. Justice Anthony M. Kennedy is widely considered the swing vote. Scalia and Alito are the conservative voters.

Democracy

The Supreme Court is expected to make objective rulings in support of the Constitution regardless of public opinion and to protect minority interests. However, this is arguably undemocratic in nature and unrepresentative of the people of the United States. Are justices accountable enough to rule on such an important issue? If the justices do rule in favor of gay marriage, would the backlash result in the court losing its legitimacy as a vital branch of government? In addition, there is a question as to whether it is the liberty of the majority to decide on the meaning of marriage. Justice Sotomayor argued that the choice of deciding who to marry or not to marry belongs to individuals, saying that by legalizing gay marriage “we’re not taking anybody’s liberty away”. (“Excerpts”, 2015, 13)

Personal Opinion

        I believe that since marriage is a legal mechanism and has added qualities other than just “couple bonded religiously together”, including taxation, property transferal, and guardianship, gay marriage should be allowed. The argument that gay marriage undermines the values of marrying to procreate is fundamentally flawed, since allowing gays to marry will not necessarily cause heterosexual people to not want to have kids anymore. Heterosexuals should be protected under the equal protection clause and allowed marriage rights just like anybody else. I believe that even though some states strongly with against gay marriage, the court has to take action to protect gay rights, regardless of whether people like it or not. What homosexuals want to do has nothing to do with what religious bigots think. I think if the court makes a decision, it is up to the states to follow the decision. If the states don’t follow the justices’ opinion, then democracy is undermined. In addition, the justices do not respond to any constituents as they stay in the court for life. Thus, politicians shouldn’t worry too much as their lame careers aren’t necessarily in question, unless people misattribute policy failure to the politicians which they always do.

BAKER, PETER. '‘Millennia’ of Marriage Being Between Man and Woman Weigh on Justices'. Nytimes.com, 2015. Online. Internet. 3 May 2015. . Available: http://www.nytimes.com/2015/04/29/us/millennia-of-marriage-being-between-man-and-woman-weigh-on-justices.html?_r=0.

'Excerpts From the Supreme Court Same-Sex Marriage Arguments'. Nytimes.com, 2015. Online. Internet. 3 May 2015. . Available: http://www.nytimes.com/interactive/2015/04/28/us/same-sex-marriage-supreme-court-excerpts.html.

Policy Synthesis

The U.S. is a mixed economy: it plays a major rule in subsidizing, taxing, borrowing, lending. The US has many regulations, as opposed to a truly free-market economy. Regulation is designed to ensure economic efficiency and equity. Economic efficiency results when the output of goods and services is the highest possible given the input used. Adam Smith supported a free market economy as being optimal to achieving efficiency and leading companies to be competitive. However, monopolies may emerge and eliminate competition, leading to unfair price setting. Government regulation however can decrease efficiency. A response to overregulation is deregulation. However, too little regulation can result. In 2008, the housing economic crisis resulted as a result of banking and investment firms not being regulated closely enough. Economic equity occurs when an economic transaction is fair to each party. The Securities and Exchange Act of 1934 was designed to protect investors from dishonest or imprudent stock and bond brokers.

The economy tends to follow a Boom-Bust Economic Cycle. The economy (GDP) peaks, then contracts. It goes to a trough, and then expands, or recovers. Over time, the trend tends to be upward. A recession is defined as a decline in real (inflation-adjusted) GDP in two successive quarters (six months). A depression a situation in which there is a real GDP decline of 10% or more, or a recession that is sustained for over two years.

The US promotes economic growth by supporting business in the following ways: Tax incentives, Corporate subsidies, Infrastructure provisions, Trade treaty negotiations, Favorable interest rates, Legal frameworks, Consumer of goods and services, Fiscal Policy. The government promotes economic growth through taxing and spending

Demand-side policies are the brainchild of John Maynard Keynes. Congress funds major projects to provide jobs, hence income, which increases demand and books production —> recovery from recessions. A potential problem is that demand-side policies tend to increase budget deficits and government debt. The current debt is $13 trillion; 15% of revenue is spent on interest payments. Deficit is the amount of spending that exceeds earnings over a year. Demand-side policies provide a short-term solution in the form of an economic stimulus.

Supply-side policies were greatly promoted by Ronald Reagan. Congress stimulates business activity — the supply of goods and services — through lower taxes to boost investment. When companies suddenly have more money, they don’t necessarily know what to do with the money. Supply-side policies tend to lead to more socioeconomic inequality in society and to lower revenues and therefore budget deficits and debt. Bush’s capital gains tax cut (28%—>15%) and highest marginal rate tax cut (39%—>35%) did not increase economic activity enough to compensate for lost revenue. Tax cuts and higher spending on Iraq War led to $432 billion deficit (from a surplus!) and growth in debt from $5.7 trillion to $10 trillion. Capital gain is money earned from selling stocks. The U.S. has a corporate tax rate that is arguably uncompetitive, but it has the highest corporate profits in the world. Many companies don’t pay taxes —> subsidies (corporate welfare). $59 billion is spent on social assistance and public assistance; wheat approximately $97 billion is spent on corporate subsidies.

Monetary policy is based on adjustments in the amount of money in circulation. The government promotes stable economic growth by controlling the money supply. A major thinker is Milton Friedman. Central banks are the most important economic actors. The US Federal Reserve Board plays important roles: supervising bank lending, limiting risky banking activities, and providing emergency loans during crises (“lenders of last resort”). There are two key actions: 1) Raising or lowering the reserve rate, the amount of cash banks must deposit in the Federal Reserve, 2) Raising or lowering the interest rate on money leant to banks, which shapes the rates banks lend to investors and consumers, and 3) buying and selling of government securities, which affects the cost and supply of money. Low interest rates stimulate borrowing, spending, and investment (cheaper to borrow and pay back). Higher interest rates discourage borrowing, spending, and investment (more expensive to borrow and pay back). Two major worries are unemployment and inflation. The unemployment rate is the proportion of the labor force actively seeking work, but unable to find jobs. The Bureau of Labor Statistics (BLS) measures this. High unemployment means many people are not earning income, which makes life harder for those individuals and families, and leads to lower consumer spending in the economy. The inflation rate is the rise in prices for consumer goods. The Consumer Price Index is the key measure of inflation that relates the rise in prices over time, taken as percentage increase of prices over a year. Causes of inflation are whatever causes price increases: too much credit available, leading to over investment; Asset “bubbles” caused by people willing to pay more than assets like houses are worth because of confidence in ever-rising prices; Higher raw material prices: especially energy; and higher labour costs: if wages grow faster than profits, producers raise prices. Profit confidence: if MNCs can raise prices without losing customers, they will

Inflation is a problem because when prices rise, each dollar is able to purchase less than it used to, therefore inflation = loss of purchasing power. Inflation and wages: “real wages”. If wages are lower than inflation, workers earn less. If wages are higher than inflation, workers earn more. The “real interest rate”: interest rate - inflation rate. The Great Inflation of the 1970s occurred when widespread availability of credit coupled with two oil price “shocks” in 1963 and 1979 led to double-digit (13%) inflation. The response by the Federal Reserve was to raise interest rates to 17.6%. This policy hurts borrowers, and helps lenders. Less borrowing à less investment à jobs cut à less spending = lower demand = lower prices = falling inflation. The outcomes were 1.3 million jobs lost in US, 24% unemployment in the auto sector.

Third Wave of Environmental Policy started with Silent Spring, a book by Rachel Carson in 1962 that made people aware of DPP and started a wave of environmental activism. This led to the EPA, National Environmental Policy Act, Clean Air Act, and Clean Water Act. The Cuyahoga River in Ohio caught fire, showing the need for action against water pollution. Earth Day was established in 1970. In 1970, President Richard Nixon signed the National Environmental Policy Act (NEPA) and created the EPA. The NEPA mandated environmental impact statements for public projects and has prioritized understanding our impacts on the environment. The EPA conducts and evaluates research, monitors environmental quality, sets and enforces standards, assists states in meeting standards, and educates the public.

Problems in making environmental policy: The tragedy of commons: An economics theory that posits that individuals, acting independently and rationally according to one’s self-interest, behave contrary to the whole group’s long-term best interests by depleting some common resource. The free rider problem: individual companies benefit from the collective action of all, which optimizes cheating. Externalities (external costs): costs borne by those who did not create the costs. Harming the environment is a cost to the public, where the public has not chosen for that cost to be incurred Industrial may seep into nearby lakes and rivers at a cost to society. The Clean Air Act of 1963 and the Water Quality Act of 1965 required firms to install antipollution devices. The ocean is an excellent example of a shared resource that can easily be abused because its shared by many different nations — Tragedy of the Commons.

Earth is warming to between two and six degrees by 2100 due to carbon dioxide. United States is leading producer of carbon dioxide, but has not reduced Kyoto treaty. Kyoto requires reduction in greenhouse gas emissions to 1990 levels by 2010. States, like California, are reducing emissions. America is mostly to blame for current global warming. 25% of Americans deny climate change exists. 60% want government to limit CO2 emissions. Over 50% want US to take action even if other states do not. Republicans are shifting away from climate change denial. The Keystone Pipeline from Alberta to Texas is a major issue.

In 2012, 49.7 million live below the official poverty line - more than 16% of the population, or 1 out of every 6 people. Almost 20% of children (1 in 5) live in poverty. 58% of Americans will spend at least one year in poverty between the ages of 25 and 78. 1.5 million households live in extreme poverty, surviving on less than $2 a day before government support. Relative poverty: significantly less income and wealth than other members of society —> measure of income inequality. OECD and EU: income below 60% of the national median. In the US, income growth has mainly occurred in the top 1% and top 10%.

Entitlement programs: government benefits that certain qualified individuals are entitled to by law, regardless of need, a.k.a. social insurance programs. Means-tested programs: government programs only available to individuals below a poverty line, a.k.a. public assistance programs. Social Insurance: Social Security, Unemployment insurance, Medicare. Public Assistance Programs: Medicaid, Supplemental Security Income, Temporary Assistance to Needy Families (TANF), Head Start, Earned Income Tax Credit (EITC). In-kind benefits: Food stamps and housing vouchers. Social Security provides payments to retired persons funded through payroll taxes on employees and employers. The amount of money received after retirement is contingent on the amount of money paid into the system while working.

Problems arise on the fact that the amount of money paid out to retirees comes from payroll taxes on current workers’ salaries. The income problem is that middle class incomes have been stagnant. The demographic problem: Post-WWII “baby boom” was followed by declining birth rates, therefore there will be more people collecting in the future but fewer people paying into the system —> social security is mathematically unsustainable. Ratio of workers to Social Security beneficiaries is declining. In 1945, 42 workers paid for one social security beneficiary. In 2005: 3.3 People were paying for each social security beneficiary. Republicans would rather reduce the deficit than help the poor. Republicans would rather keep military spending than reduce it. Both Republicans and Democrats want to keep social security and Medicare benefits at current levels.

Judiciary Synthesis

        In Federalist No. 78, Hamilton argued for life tenure for federalist judges. Hamilton said the judicial branch would be the weakest of the three branches, and the best way to ensure that judicial decisions are fair is to ensure they are free of all allegiances except of to the rule of law.

        The Supreme Court is the nation’s highest court. A court’s jurisdiction is its authority to hear cases of a particular type. Original jurisdiction is the authority to be the first court to hear a case. The Supreme Court’s original jurisdiction includes legal disputes involving cases in which the opposing parties are state governments. Appellate jurisdiction is the authority to review cases that have already been heard in lower courts and are appealed to a higher court by the losing party. Higher courts are called appeals courts or appellate courts. The Supreme Court does its most important work as an appellate court. Appellate courts do not retry cases, but determine whether a trial court has acted in accord with applicable law.

        The Supreme Court’s strongest power is judicial review, where the Supreme Court declares another institution’s actions unconstitutional. In Marbury v Madison, the Supreme Court rebuked both the Congress and the President. The Supreme Court’s primary responsibility is to establish legal precedents through which to guide lower courts.

        If at least four out of nine justices agree to hear a case, the Court issues a writ of certiorari, which is a request to the lower court to submit to the Supreme Court a record of the case. Each year about 8000 cases apply, but fewer than a hundred are granted certiorari.

        The solicitor general is the top lawyer for the United States Government. The Supreme Court is most likely to grant cases appealed by the solicitor general.

John Roberts: sexy, conservative chief justice

        During a Supreme Court hearing, each side provides the Court a written brief. An amicus curiae is a brief submitted by a “friend of the court”. The oral session is followed by the judicial conference, which is where the judges debate in secrecy. The chief justice has the choice to be the first speaker, through which he or she can persuade the rest of the justices on a certain issue.

The court decision indicates which party the Court supports and by how large a margin. An opinion includes the legal basis for a decision. When a majority of justices agree, there is a majority opinion. A concurring opinion is written when a judge votes with the majority but disagrees on the reasoning. A judge who votes against the majority writes a dissenting opinion.

District courts are the lowest federal courts. When the losing side appeals, the case goes up to the US Courts of Appeals. The US has thirteen courts of appeals, eleven of which handle a circuit of which contains several states. Another has a jurisdiction over appeals arising in the District of Columbia and the other (The US Court of Appeals for the Federal Circuit) has jurisdiction over appeals involving patents and international trade. Less than 1% of cases heard by federal appeals courts are heard by the Supreme Court. Many states elect federal court judges.

State courts decide more than 95% of the cases in the United States. This is because state laws differentiate from federal laws, and federal laws may not cover most issues.

The doctrine of judicial activism says that judges should actively interpret the Constitution to reflect current conditions and values. Warren Court in the late 1960s to the mid-1980s was a court of liberal tendencies and made many key decisions supporting civil rights. On the contrast, judicial restraint says that judges should do little to play policymaking roles and leave them to the legislatures. Rehnquist Court in the late 1980s to mid-2000s was a court of conservative tendencies.