Health Care and Same-Sex Marriage: Liberty for Me, but Not for Thee

The e-mails came pouring into in-boxes throughout the world of journalism and politics and law Monday afternoon, celebratory messages from conservative groups and others opposed to the nation's new health care laws, and they all made the same essential point: U.S. District Judge Henry Hudson's ruling that day, striking down the "individual mandate provision" of what so many of them ignobly called "Obamacare," was a victory for "freedom" and "liberty."

"Today is a great day for liberty," said Sen. Orrin Hatch (R-Utah). "Liberty requires limits on government, and today those limits have been upheld." Freedom and liberty -- from "reckless legislative overreach" (Center for Individual Freedom). From excessive government power (Virginia Gov. Bob McDonnell). From "Obamacare" (Richard Viguerie). From "intrusive and restrictive" actions by government (United Conservatives of Virginia). It went on and on. Rather than striking down a legislative effort to solve a massive national problem, you would have thought the federal trial judge, an appointee of George W. Bush, had freed a people from bondage.

Alas, he did not. All Hudson did was refuse to accept the federal government's premise that there is room in the Commerce Clause of the Constitution for a federal plan that forces Americans to pay more for health care upfront so that the nation can save more in the end. Several times during the course of his 42-page ruling, Hudson noted the absence of any Supreme Court precedent supporting the Obama administration's legal view. Same planet, different world? At least two other federal judges, both Democratic appointees, have looked at the same health care provision, and the same Supreme Court precedent, and landed on a shore directly across the river from where Hudson stands. Ultimately, the judge with the only vote that counts -- the Supreme Court's swing voter, Anthony Kennedy -- will tell us what he thinks.

There's already been plenty of analysis and commentary on Monday's ruling. And there will be more to come between now and spring 2012, when (I'm betting) the justices reach their verdict. But let's get back to "freedom" and "liberty" and how cheap and easy those noble but ambiguous words have become in the modern marketplace of ideas. Earlier this year, another federal trial judge, another Republican appointee, issued another ruling in another high-profile, politically charged case. Like Hudson, this judge also struck down government action endorsed by roughly half the population -- in order to grant a certain measure of "liberty" and "freedom" to Americans. Like the folks challenging the new health care laws, the individuals and groups that sought redress in federal court that time complained of unwarranted intrusions into their private, personal decisions.

Yet Monday's tribunes of individual freedom sang a much different tune in early August when U.S. District Judge Vaughn Walker declared California's ban against same-sex marriage unconstitutional. There was no talk from them then of freedom from government restrictions or from the tyranny of the majority (or a duly enacted law). Hatch, for example, reacted to Walker's ruling by saying: "One federal judge trumped 7 million voters by making up a right that is not in the Constitution." McDonnell said: "I think the court is wrong to overturn the will of the people." You get the idea. One person's activist judge is another person's principled and courageous defender of liberty. The "will of the people" must be respected, except when it shouldn't be.

Before roughly half of you start wailing about an inapt comparison, let me be clear. I'm not comparing the legal issues involved in the fight over California's "traditional" marriage initiative (equal protection, due process, ballot measures) with the legal issues involved in the fight over the individual mandate contained in the new health care law (the Commerce Clause, the General Welfare Clause, etc.). I am not comparing the history of marriage with the history of health care (although, let's be honest, the "tradition" of health care is necessarily older than the "tradition" of marriage. People had to survive before they could marry). And I am not suggesting that a law that seeks to bar something from some people -- like marrying your same-sex partner -- is structurally or philosophically the same as a law that seeks to require something of people -- like purchasing health insurance when you don't want to.

But if the words "liberty" and "freedom" are going to have meaning in the context of the modern struggle between individual rights and government power, they ought to be used more consistently than they have this year in the official narratives about these two monumental legal stories. Why is the right to be "free" from the constraints of a national health care initiative more worthy of political support than the right to be free from limitations on marriage between consenting adults? Why is an individual liberty that has been found to harm few -- indeed, Walker found that there were substantial costs in preventing same-sex couples from marrying -- worthy of less support than an individual liberty that tags the rest of us with billions of dollars each year in unnecessary health care costs? I'm just asking the question.

It's true that Hudson's ruling, if it is upheld on appeal, will free some people from the burden of buying health insurance. But Walker's ruling, if it is upheld on appeal, also will free some people -- from the burden of being forced by government mandate to live their lives together as something less than they so wish. On Monday Hudson said the issue before him was essentially a matter of whether the government could limit "an individual's right to choose." Walker said as much in August. There is a reason, isn't there, why the Pledge of Allegiance says "liberty and justice for all" and not "liberty and justice for some"?