What The Supreme Court Will Actually Decide: Do Gay People Exist?

Frank Kameny was a life-long activist for gay rights.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?

At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

Herein lies greatest challenge for gay and lesbian civil rights: the fact that sexual orientation is an invisible identity. Unlike race or gender, it cannot so easily be superficially assessed. Thus, conservatives are counting on doubt and distrust, urging the Court to dismiss whatever gay people actually say about their lived experiences — discount every individual’s coming out story, ignore decades of gay culture and gay history, and disregard the scientific conclusions of the entire major medical community. In fact, opponents of equality regularly claim that “the gay agenda” is merely a conspiratorial quest to validate sinful behavior — as opposed to an effort to allow millions of people to participate fairly in society.

The Court will have the opportunity to weigh the question of whether gay men and lesbians exist in both a legal and practical sense. The practical case for recognizing gays is simple, yet compelling: gay people exist and more importantly, are already raising children in families. All of the conservatives’ arguments rely on claims about “responsible procreation” and what’s best for children, but not one of them takes into account the millions of children already growing up with same-sex parents. Besides the fact social science research supports same-sex parenting, it’s quite easy to see how those families would benefit from the securities and protections of marriage equality. The Court could simply accept opponents’ arguments about the values and purposes of marriage, but rather than apply them in conservatives’ imaginary gay-free universe, acknowledge that they should apply equally and fairly to gay couples as well.

The magic words to look for if the Supreme Court legally recognizes gay people is “heightened scrutiny,” which is how the Court determines that the government cannot target a specific group for unfair treatment without substantial justification. For example, classifications based on sex are subject to “intermediate scrutiny,” and classifications based on race are subject to the highest level, “strict scrutiny.” When the Second Circuit Court of Appeals ruled in favor of Edie Windsor’s case against DOMA, it determined that intermediate scrutiny should apply. The Supreme Court, however, has not applied any level of heightened scrutiny for sexual orientation in past cases, even when ruling in favor of gay rights, such as Lawrence v. Texas (overturning sodomy laws) and Romer v. Evans (overturning a Colorado amendment banning LGBT nondiscrimiantion protections).

The Court has traditionally considered four criteria to determine whether laws that target a specific group should be subject to heightened scrutiny:

Has the group been historically discriminated against or subjected to prejudice and hostility?Does the group possess an immutable (unchangeable) or highly visible trait?Does the group lack sufficient power to protect themselves from the political process?Can you group still contribute meaningfully to society despite the distinguishing characteristic?

Undoubtedly, the answer to all four questions when considering sexual orientation is “yes,” but that hasn’t stopped opponents from arguing otherwise. Notably, House Republicans have actually argued that gays and lesbians are politically powerful because they have “attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” Of course, the rate of progress is not indicative of the quality of that progress, and the very need for multiple challenges to discriminatory laws like DOMA and Prop 8 disproves the claim on its face.

If any of the Justices determine that the answer to any of these questions is “no,” they would have to deny many facts in the process. They would have to discount the government’s Lavender Scare witch hunts of the 1950s, decades of police persecution and brutality, the ambivalence to research HIV when hundreds of gay men were dying of AIDS, and laws that have specifically targeted gays and lesbians for discrimination, like “Don’t Ask, Don’t Tell.” They would have to set aside the 38 states that have banned same-sex marriage, many by a majority vote in a constitutional referendum. And they’d have to impose their own understandings of identity upon the millions of people who identify as gay, lesbian, or bisexual and cannot change their sexual orientation.

The end result of these cases will determine the legality of same-sex marriage, but for the first time, the Court could actually acknowledge that gay people exist and thus deserve protection under the U.S. Constitution. On both a symbolic and legal level, the latter victory could be much more significant.

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PREVIEW-Top U.S. court to decide on deals to delay cheaper drugs

WASHINGTON, March 22 (Reuters) - The U.S. Supreme Court will hear arguments on Monday over whether big drug companies can settle patent litigation with generic rivals by making deals to keep cheaper products off the market.

U.S. and state regulators say the practice costs consumers, insurers and government billions of dollars annually.

The Federal Trade Commission, which has dubbed these arrangements "pay for delay," has fought them in court for more than a decade with mixed success, culminating in the case now before the Supreme Court.

"The continuing stream of monopoly profits is large enough to pay the generic competitors more than they could hope to earn if they entered the market at competitive prices," the FTC said in a brief.

At the same time, the brand-name manufacturer receives greater profits than it could earn in the face of generic competition, the regulatory agency argued.

The Justice Department, the European Union and more than two dozen U.S. state attorneys general view the deals as illegal, but drug companies defend them as a way to avoid potentially lengthy patent litigation.

"In every case that we've been in involved in that resulted in a settlement, it has resulted in years being taken off the patent life," added Paul Bisaro, chief executive of generic drug maker Actavis, Inc. Actavis was formerly Watson Pharmaceuticals.

"It's very unsophisticated to say 'Oh, they get paid a bunch of money to stay off the market,"' said Bisaro.

In the case before the court, Solvay Pharmaceuticals Inc, now owned by AbbVie, sued generic drug makers in 2003 to stop cheaper versions of AndroGel, a gel used to treat men with low testosterone.

These payments, as high as $30 million annually, went to rivals Watson, Paddock Laboratories Inc and Par Pharmaceutical Cos, and were intended to help Solvay preserve annual profits estimated at $125 million.

Under the deal, the three would stay off the market until 2015. The patent expires in 2020.

AbbVie was confident that it would win.

"The federal district and appellate courts have both previously ruled that the plaintiff's allegations lacked merit. We are confident that these decisions will be upheld," Adelle Infante, an AbbVie spokeswoman, said in a statement.

The Supreme Court is expected to issue a decision by the end of June.

AbbVie's arrangement is similar to the 40 deals made in the 2012 fiscal year, which ended on Sept. 30. That was up from 28 the previous year despite FTC efforts to stop them. The FTC said the agreements involved 31 different brand name drugs with total U.S. sales of more than $8.3 billion annually.

The FTC sued to stop the AndroGel arrangement, arguing that it was illegal under antitrust law because the companies divided up the market.

The FTC lost at the district court level and lost an appeal as well. But another appellate court has said the deals were illegal, prompting the Supreme Court to step in to resolve the split.

The FTC also sued Cephalon Inc, accusing it in 2008 of blocking a generic version of the anti-sleep drug Provigil. The case has been stayed pending the Supreme Court's decision.

In 2001 the FTC sued Schering-Plough Corp., later bought by Merck and Co Inc, because of payments to rivals to delay generic versions of its potassium supplement, K-Dur 20. The FTC lost that case.

But in a private case that also involved K-Dur, the U.S. Court of Appeals for the Third Circuit, in New Jersey, backed the FTC position and found the deals to be illegal.

BATTLES ON CAPITOL HILL, EUROPE

Opponents of pay-for-delay deals in the United States and Europe are not waiting for a high court decision, though.

Senator Amy Klobuchar, a Democrat from Minnesota and chairwoman of the Senate Judiciary Committee's antitrust panel, and Senator Chuck Grassley, a Republican from Iowa, introduced legislation in February to make the deals illegal.

Previous bills have failed in part because of opposition from the drug industry, both branded and generic.

In Brussels, EU regulators have eight investigations under way involving more than a dozen drugmakers. The European competition regulator says the deals violate antitrust law.

The decision will be made by an eight-member court. Justice Samuel Alito recused himself, without giving a reason.

The case is Federal Trade Commission v. Watson Pharmaceuticals Inc et al, U.S. Supreme Court, No. 12-416.

(Reporting By Diane Bartz; editing by Ros Krasny and Kenneth Barry)

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GOP Congressman Says Supreme Court Doesn’t Actually Get To Decide Whether Laws Are Constitutional

Rep. Jim Bridenstine (R-OK)

Still smarting over last year’s ruling upholding Obamacare, freshman Rep. Jim Bridenstine (R-OK) dismissed the idea that the Supreme Court decides whether or not laws are constitutional.

“Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional,” Bridenstine said in a Daily Caller interview posted Sunday. After accusing Democrats of “stacking the courts in their favor” — five of the current nine justices were appointed by Republican presidents — Bridenstine dismissed the idea that Congress must write laws within the boundaries set by the Supreme Court. “That’s not the case,” the Oklahoma congressman said.

The interviewer, Supreme Court Justice Clarence Thomas’s wife Ginni Thomas, didn’t have the heart to correct Bridenstine’s peculiar view of the Court’s role.

BRIDENSTINE: Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. So what we have to do as a body of Congress is say, “look, just because the courts” – and I hear this all the time from Republicans – they say that the court is the arbitrator and after the arbitration is done, that’s the rules we have to live under and we can go forth and make legislation given those rules. That’s not the case. A perfect example if Obamacare. Obamacare is not constitutional, the individual mandate.

Watch it:

There is certainly good reason to doubt the way this Supreme Court reads the Constitution — Citizens United alone proves that point. Our current court gave sweeping legal immunity to wealthy corporations. It took away Lilly Ledbetter’s right to equal pay for equal work. It shrinks reproductive freedom because women may “come to regret” the choices they make if they have control of their own bodies. And it appears poised to strike down a key provision of the Voting Rights Act.

But the idea that this particular Court distorted the Constitution to uphold Obamacare does not even pass the smell test. In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”

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11 GOP Governors Still Need To Decide Whether Or Not To Deny Health Care To Low-Income Americans

Gov. Scott Walker (R-WI) announced on Wednesday that he will turn down Obamacare’s optional expansion of the Medicaid program, which makes him the thirteenth Republican leader to refuse to extend public health insurance to additional low-income Americans. Six GOP governors — in Arizona, Michigan, New Mexico, North Dakota, Ohio and Nevada — have expressed support for expanding Medicaid, and the rest still need to decide what they want to do about that particular provision of the health reform law.

And even though most GOP leaders claim that expanding Medicaid would be too costly, they’re actually being lobbied by hospital companies, economists, and health care experts who all say the financial benefits — since the federal government will fully fund the first several years of expansion — are too good to turn down:

“It’s fascinating, because on the political level, it’s a classic clash between money and politics,” said Dan Mendelson, CEO of Avalere health advisory company. He said he and his 170 advisers working with the health care industry are hearing plenty about expansion.

“It sets up a really difficult tension between the Republican governors and the hospitals, but there’s an increasing level of political cover being given to the governors to expand their programs,” Mendelson said. [...]

In Florida, a recent poll found that 60% of residents would like to see Medicaid expanded, Mendelson said. Several economic studies have found the states may benefit both by federal funds going into local economies, as well as taxes from those sales going back into the coffers of local government.

The significant federal funds allocated to states that choose to expand Medicaid led the hospital industry to wonder if governors were bluffing about rejecting the expansion. That quickly proved not to be the case, as stubborn GOP politicians in some of the states with the highest rates of uninsurance in the nation still refused to cooperate with the health care reform law.

Diverse coalitions across the country have partnered to pressure resistant lawmakers to expand their Medicaid programs. The growing list of GOP governors who have accepted the optional expansion over the past few weeks seemed to signal that political deadlock may soon give way to reality, but the remaining Republican leaders may buck that trend when they eventually announce their own decisions.

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Obama Pledges To Push For Gun Control Measures If ‘American People Decide It’s Important’

President Obama called the Dec. 14th shooting in Newtown, Connecticut “the worst day of my presidency,” and said during a rare interview on Meet The Press, that he will propose a package of reforms that will likely include new regulations on assault-rifles and high-capacity ammunition clips, and enhanced background checks for gun purchases. A commission headed by Vice President Joe Biden is currently drafting gun safety recommendations.

But Obama stressed that reform cannot happen without broad public support, suggesting that he will rally public opinion for sensible gun safety regulations or drop the effort if Americans are not on board.

“We’re not going to get this done unless the American people decide it’s important and so this is not going to be a matter of me spending political capital. One of the things that you learn having now been in this office for four years. The old adage of Abraham Lincoln’s, ‘with public opinion there is nothing you can’t do and without public opinion there is very little you can get done in this town.’” Watch it:

Obama also rejected the National Rifle Association’s (NRA) call for more guns in schools, arguing that “the vast majority of the American people are skeptical that that somehow is going to solve our problem.” He promised to listen to all sides of the gun debate before making any legislative recommendations.

“It is not enough for us to say, ‘This is too hard so we’re not going to try,’” Obama said. “So what I intend to do is I will call all the stakeholders together. I will meet with Republicans. I will meet with Democrats. I will talk to anybody. I think there are a vast majority of responsible gun owners out there who recognize that we can’t have a situation in which somebody with severe psychological problems is able to get the kind of high capacity weapons that this individual in Newtown obtained and gun down our kids. And, yes, it’s going to be hard.”

Public support for gun control has increased in the wake of the shooting. A USA Today/Gallup poll released Thursday found that support for stricter guns laws is at its highest since 2004, with 47 percent now favor passing new gun laws rather than simply ramping up enforcement of current law. Fifty-eight percent called for stricter gun laws, a 15-point jump since October 2011.

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