Many Catholics and other Americans are no doubt wondering about the implications of the same-sex marriage case for the future of religious liberty. That is a discussion the country is certainly going to be having. I noticed, however, one effort to connect the King v. Burwell ruling (on the question of whether the Affordable Care Act actually authorizes subsidies for people on the federal exchange) to the question of religious liberty. That should be addressed, too. For me, I don’t think there is much connection at all.
The suggestion of a connection was made on Fox News on Thursday night by Charles Krauthammer. He summed up the legal situation on Obamacare by saying that, in his opinion, the bottom line is that John Roberts is not going to let Obamacare be gutted by the Court on his watch. In response to this, the host of the show–Bret Baier–asked: even if it means saying no to the Little Sisters of the Poor? Then Krauthammer indicated: yes, even in that case. So that question tried to link the two issues.
I would say that that idea is pretty alarmist and unjustified. Catholics are certainly right to be worried about the future of religious liberty. There is plenty of evidence that many Americans would like to reduce religious liberty to the narrowest possible scope. But there is no real connection between the King case and the question of religious liberty, and there is no reason to think that Roberts’s decision to vote to preserve the law as it is being administered says anything about how he would vote on a religious liberty challenge to the application of some specific regulation under the law. Even if you assume that Roberts is being purely political–an assumption I would not grant lightly–the consequences in the two cases are totally different. Ruling against the government in the King case probably would make the whole ACA unworkable–would gut it. Ruling in favor of a religious liberty claim against some specific regulation under the ACA–ruling in favor of, say, the Little Sisters of the Poor–would not do so. It is worth remembering here that Chief Justice Roberts voted with the majority that affirmed Hobby Lobby’s religious liberty claim just last year.
Also, on the question whether Roberts is being political, here is why I would not make the accusation lightly–or really note make it at all based on the evidence we have. The two cases from last week that have led some to make this accusation just don’t show that he is behaving politically rather than reasoning to the conclusions he thinks correct. I have seen conservative commentators on TV in the last few days throw up their hands and say: how could he vote to preserve the ACA as the administration interprets it and then the next day vote against same-sex marriage? How could he rewrite the ACA on Thursday and then note that the Court is not a legislative body on Friday?
This kind of complaint presupposes that the King case was a lot simpler than it really is. To figure out whether Roberts was behaving politically in the King case you would have to read his opinion and not just complain about the outcome. But even without getting into the details, this difference is very much worth noting. The standards that a Court would apply in deciding between two competing interpretations of a (very complex) statute like the ACA might well be very different from the standards it should apply in deciding whether to declare unconstitutional the marriage laws of most of the states. There might even be a certain consistency in deferring to the administration’s interpretation of the statute and also deferring to the settled definition of marriage as it was embodied in the laws of many states.