The Constitutional Case for Same-Sex Marriage

As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

Know Your Consumer-Driven Health Care: HRA

This is the second of three posts on the primary consumer-driven health care arrangements under the current Internal Revenue Code.

The first post on consumer-driven health care discussed the health FSA, a useful but ultimately flawed vehicle hampered primarily by the use-it-or-lose it rule and ObamaCare limits.  This post discusses the HRA, a more dynamic arrangement that can be used in many creative and powerful ways - pending a number of ObamaCare changes that will dramatically limit the HRA’s versatility.

As stated in the first post, the ideal consumer-driven health care vehicle should strive to achieve three main objectives:

  1. Provide incentive for the individual to spend less on health expenses;
  2. Maximize the individual’s flexibility in contributions and ownership of all assets contributed; and
  3. Limit the individual’s financial exposure by including an out-of-pocket maximum

What is an HRA?

A health reimbursement arrangement (HRA) is a creature of Sections 105 and 106 of the Internal Revenue Code.  It’s an entirely employer funded account used to pay for health care expenses on a tax-free basis.  Employers can structure HRAs to offer many benefits, including:

  • Direct reimbursement for medical expenses as the primary form of health coverage;
  • A way to pay for deductibles and other out-of-pocket expenses from major medical coverage;
  • As an account to pay for the premiums for major medical coverage; or
  • Any combination of those purposes

This versatility, as well as a few other key advantages over the health FSA, have made the HRA a commonly used employer-sponsored plan since 2002 when IRS guidance first blessed the HRA concept.

The Good

Obama: Stupendous Man! and Lawgiver

My all time favorite comic strip is Calvin and Hobbes. It is about a young boy and his pet stuffed tiger, and the adventures they have jumping between real life and a world ruled by his imagination. He escapes the mundane tasks of life by escaping into his alternate reality, where he can be anything he wants to be, from a Tyrannosaurus Rex, to the Intrepid Spaceman Spiff, from Stupendous Man!, to the Supreme Ruler and Dictator for Life. Calvin always wins in the end because, it being his imagination, he controls the outcome. In a comic strip, this is great fun. In real life…not so much.

President Obama seems to have determined that he is the new Supreme Ruler and Dictator for Life. At least, this is a plausible conclusion based on his actions since taking office. Our first real glimpse at his unbridled narcissism came at a rally in June 2008. Having won the Democrat Party nomination for president, Obama proclaimed to the adoring throngs that “this was the moment when the rise of the oceans began to slow and our planet began to heal; this was the moment when we ended a war and secured our nation and restored our image as the last, best hope on earth.” Goodness, now all he has to do is cure cancer and raise the dead and he can call it a day!

The problem with Obama’s view of himself as a messianic leader is that he seems to feel not only that he is above the law, but that he is the Supreme Lawgiver. He sees himself as the voice in the burning bush, giving utterance to his subjects which has force of law by virtue of his having spoken it, and we are all commanded to obey.

Obama has gotten one individual liberty issue right


Call it a case of the proverbial broken clock being right twice a day. President Obama has been terrible on most liberty issues, of course. He came into office promising a hands-off approach to medical marijuana states, but his DEA and FBI have kept the pace of the Bush administration on clinic raids. He has proposed and supported restrictive gun regulations, though his infamous “executive actions” didn’t end up amounting to all that much.

The myriad Obamacare mandates are egregious violations of individual and organizational liberty. But there’s one area where Obama has gotten it exactly right, or at least as well as can be expected from a modern President: individual rights for gay Americans.

Biggest Stories of 2013: Supreme Court Partially Strikes Down DOMA

Throughout New Year’s Eve, we’ll be going through the 10 biggest political stories of 2013 as selected by United Liberty’s contributors. Don’t forget to chime in on the biggest stories of the year on our Facebook page.

Supreme Court

When 2013 started, only nine states in the United States recognized same-sex marriage, including three that did so just two months earlier on Election Day. As the year went on, three additional states joined the list via legislation.

The biggest moment in the history of the marriage equality movement to date, though, occurred in June when the Supreme Court handed down its opinion in United States v. Windsor which declared Section 3 the Defense of Marriage Act (DOMA) to be unconstitutional.

DOMA, of course, had been passed by Congress with huge majorities in 1996 in response to the very first steps toward attempting to give gays and lesbians the right to marry and was the beginning of a push back against same-sex marriage, and Section 3 was the portion of the law that defined marriage for purposes of federal law as being only between a man and a woman. This was the start of a “traditional marriage” movement that was hugely successful for the next twelve years as laws or constitutional amendments banning same-sex marriage passed in the vast majority of the states, typically by large majorities.

Media takes Rand Paul’s DOMA comments completely out of context

Shortly after the Supreme Court’s rulings on the Defense of Marriage Act (DOMA) and Proposition 8, Sen. Rand Paul (R-KY) joined conservative talk show host Glenn Beck to discuss the cases and the role of states in defining marriage.

Beck expressed a measure of concern that altering the definition of marriage would lead to polygamy.

“I really don’t care — you get married, you don’t get married; you have homosexual marriage or whatever,” said Beck. “First problem with this is if you change one variable — man and a woman to man and man, and woman and woman — you cannot then tell me that you cannot logically tell me you can’t change the other variable: one man, three women. Uh, one woman, four men.”

“Who are you to say, if I’m a devout Muslim and I come over here and I have three wives, who are you to say if I’m an American citizen, that I can’t have multiple marriages,” he added.

Paul expressed agreement with Beck’s comments, adding that there is a role for state governments to have basic some laws on marriage, without which, he said sarcastically, could lead to unusual arrangements.

Supreme Court strikes down federal provisions of DOMA

In the first of two cases dealing with the issue of gay marriage, the Supreme Court ruled this morning struck down the federal provisions of the Defense of Marriage Act (DOMA) while maintaining the prerogative of states to define marriage on their own terms.

The Court’s opinion in the case, United States v. Windsor, authored by Justice Anthony Kennedy, ruled that Section 3 of DOMA, which codified the definition of marriage as one man and one woman into federal law in 1996, violates the Equal Protection Clause of Fourteenth Amendment and the Due Process Clause of the Fifth Amendment.

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound,” wrote Kennedy for the majority. “It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code.”

“The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment,” added Kennedy. “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

Recapping 2012: Things People Think They Know…But Don’t

“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” — Thomas Jefferson, 1816, Letter to Charles Yancey

I’ve come to the conclusion that Dante, in writing his classic “Inferno”, actually missed the final level of Hell. Or rather, I have not so much concluded that, as discovered it. The deepest level of Hell is to be forced to watch the news and read the printed and online media, and see falsities, half-truths, and outright lies perpetuated ad nauseum, and be completely impotent to get people to realize the truth. You can convince a large majority of the people to believe just about anything as long as you say it in a serious, contemplative voice, or preface it with the statement “Experts agree” or “A new study has discovered…” I don’t mind people disagreeing with me (indeed, there are few things I enjoy more than debating against someone that is informed and well-prepared) but it drives me berserk at the absolute stupidity that some people are willing to believe.

So, as we head into the new year, my last column will be dedicated to correcting oft-repeated fallacies, in the hope that it will create a spark that leads to a reassessment of things that people believe, but just aren’t so. In no particular order, here is the truth about some common fallacies that I wish could be corrected once and for all…

GOP presidential candidates square off in South Carolina

In case you missed it, five Republican hopefuls - Herman Cain, Gary Johnson, Ron Paul, Tim Pawlenty and Rick Santorum - squared off last night at the Peace Center in Greenville, South Carolina for the first debate of the 2012 presidential campaign cycle.

The debate was about what I expected. Truth be told, I had debated watching it because of the lack of candidates in the race. But it served as a good warm up for candidates. However, it likely left a lot of Republican primary voters looking for others to get in the race.

Tim Pawlenty: He struck me as the most presidential of the five candidates that appeared at this debate. He resonated on health care, criticizing aspects of ObamaCare; specifically that it would bring down costs. However, he spent some time acknowledging past support for cap-and-trade after being confronted with his own words.

Rick Santorum: It goes without saying that Santorum is hoping to pick up social conservatives in the primary. That was the only issue that I think he effectively hammered home last night. His record on fiscal issues is a non-starter for most. He also came across angry at times, some would call it passionate, I guess.

Herman Cain: I know a lot of people, particularly his annoying supporters, are saying that he won the debate. There is no question that Cain is an excellent speaker. However, his lack of substance on foreign policy really showed through on a couple of occasions. He had a couple of soundbite clips and a gave a solid answer on energy independence.

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