[EL] Burwell v Mata (subsidies v same-sex marriage)

[Schultz, David A.]

Since Rick has opted to discuss same-sex marriage and Justice Thomas's
Alabama dissent on this listserv let me offer a thought.

Let us speculate on the fate of two cases,   King v. Burwell (Affordable
Care Act subsidies to health care exchanges run by the federal government)
v Mata v Holder (same-sex marriage).

Given Justice Thomas’ dissent in the Alabama same-sex marriage stay some
are speculating that Justice Roberts will vote to make it 6-3 in holding
that the Constitution protects a right to same-sex marriage.  Assuming that
is correct, there may be a several possible reasons for his vote.

Obviously one answer is that he thinks this is the correct constitutional
answer.  Second, the Chief Justice is engaged in some smart politics and
strategic decision making.  Should he vote to rule that same-sex marriage
is protected under the Constitution he is in the position to write or
assign the majority opinion.  He of course could assign the opinion to
Kennedy (assuming which I do that he is the fifth vote) or he retains the
right to pen the opinion himself, thereby giving him more leverage over
what the Court opinion is or simply to ensure that the decision is at least
6-3, thereby strengthening its legitimacy.

Another scenario: He is leaning toward striking down the federal subsidies
under the ACA.  This is not an impossible scenario and given rumors that he
switched his vote in 2012 regarding the constitutionality of the mandate,
it is possible that now he write a 5-4 opinion striking down the subsidies
on statutory interpretation grounds.  Thus, voting to support same-sex
marriage under the Constitution gives him some political capital or
deflects away from his decision in Mata invalidating the federal subsidies.

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
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http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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