For the past three mornings, the Supreme Court has handed down a number of decisions that have greatly reshaped civil rights in the country. On one hand, the Court has narrowed the possibility to combat and rectify a history of race discrimination. On the other hand, it (surprisingly) broadened civil rights for gays and lesbians.
To understand what I mean by this, let’s look at the two cases involving race discrimination and same-sex marriage.
Fisher v. University of Texas (revisited)
On Monday, I wrote about the Court’s unwillingness to rule on the University of Texas at Austin’s affirmative action admissions program but directed the lower appeals court to apply a stricter standard, more so than what we’ve seen before in previous affirmative action cases. Some people call this maneuver a punt. Others call it the Court’s careful way to chip away at affirmative action.
Shelby County v. Holder
On Tuesday, the Court handed down the much-awaited voting rights case. This case is controversial because of the historical legacy of voting discrimination in this country, but also because of the federal government’s oversight concerning voting practices that are typically left to states and municipalities.
Unlike its narrow decision on affirmative action, the Court’s decision in Shelby County v. Holder has a more consequential impact for race discrimination. The petitioner, Shelby County, Alabama, challenged the constitutionality of the formula laid out in Section 4 of the Voting Rights Act, which determines which states and localities must have their voting procedures monitored by the federal government. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s.
In a 5-4 decision, the Court struck down the Section 4 of the Act. Chief Justice John G. Roberts wrote the majority opinion and Associate Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas signed on. According to the majority opinion, the formula is based on decades-old data and practices that have been eradicated, while such tests have been banned nationwide for over 40 years, and voter registration and turnout numbers in the covered States have risen dramatically in that period.
While this seems to suggest preclearance by the federal government is still viable, there are a number of practical concerns. First, without a constitutionally sound Section 4 “coverage formula,” the Voting Rights Act cannot be enforced. Congress must now devise a new way of determining which states and localities require federal monitoring of elections. If history is any indicator, this may take awhile, particularly with a more conservative House of Representatives.
Second, even if Congress revises the coverage formula, they may do so in such a way that slowly erodes government oversight in areas that have historically restricted the rights of racial minorities. This is why Associate Justice Clarence Thomas wrote in his concurring opinion that he would have struck down both Sections 4 and 5. He wrote, “by leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision [Section 5].”
Justice Ruth Bader Ginsburg, who authored the dissenting opinion and signed by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, expressed this concern and said that an overhaul of Section 4 will impede the progress Congress had done to reduce voting discrimination: “Just as buildings in California have a greater need to be earthquake proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.”
U.S. v. Windsor (“The DOMA Case”)
The case involved Edith Windsor, a woman married to Thea Spyer, and in the State of New York where same-sex marriage is recognized. When Spyer died, her estate was required to pay more than $363,000 in federal estate taxes on the transfer of her assets to Windsor because the federal government did not recognize same-sex marriages. (Typically, no estate tax is imposed to an estate left to a spouse.)
The Defense of Marriage Act (DOMA), enacted in 1996, defined marriage as a union between a man and a woman. This definition prevented legally married same-sex couples from receiving the hundreds of federal benefits available to opposite-sex married couples. The Justice Department initially defended DOMA only to change its tune in 2011, calling the law unconstitutional and declining to defend it.
When the case was argued before the Court, many believed that Justice Anthony Kennedy was going to write a majority opinion that framed the constitutional question of one concerning federalism; marriage is defined and regulated by states, and therefore the definition of marriage should also be up to the states and not the federal government.
However, the Supreme Court sided with Windsor on grounds no one was anticipating. With the 5-4 split, the majority held that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” The opinion, written by Justice Kennedy, said:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Accordingly, the majority said DOMA violated Equal Protection because it treated same-sex and opposite-sex married couples differently. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor signed on.
The dissenting opinion was written by Justice Antonin Scalia and signed on by Chief Justice John Roberts and Justices Samuel Alito, and Clarence Thomas. In a rare, bold move, Scalia read his dissent from the bench. The dissent was incendiary both at the substance of the majority opinion and at the Court itself.
What does this all mean? Striking down DOMA’s provision paves the way for same-sex marriages to have the rights and benefits as opposite-sex couples under federal law. It does not mandate same-sex marriage in all 50 states, however.
More importantly, the majority’s willingness to decide this matter under an Equal Protection analysis signals to the broader public that gays and lesbians should be considered as equal under the law.
Hollingsworth v. Perry (“The Prop 8 Case”)
This case considered the constitutionality of Prop 8, a 2008 California ballot initiative that that would amend the state’s constitution to prohibit same-sex marriage. A federal court in California struck down Prop 8 on the grounds that it unfairly discriminated against gays and lesbians who wished to marry. Typically, a state defends and advocates for state laws in federal court, but the State of California refused to defend Prop 8, agreeing with the decision that it was unconstitutional. As a result, several proponents of Prop 8 defended the law, which raised the question whether they had legal “standing” to bring the case before a court to begin with.
The Supreme Court was also split on this issue, and the alignment of Justices had people wondering whether it was a typo or a lapse in judgment. In a 5-4 ruling, the case was dismissed for lack of standing. The majority opinion was written by Chief Justice Roberts with Justices Scalia, Ginsburg, Breyer and Kagan signing on. It read, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”
The dissent, written by Justice Kennedy and joined by Justices Thomas, Alito and Sotomayor, believed that the Prop 8, anti-gay marriage activists did have standing (or, to think about it another way, stakes) in this dispute. “Their commitment is substantial,” Kennedy noted, “Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy.”
What does this mean? The decision does not make marriage legal in all 50 states, but it does pave the way for same-sex marriage to be legal in California.
In sum, the DOMA and Prop 8 cases together did not usher in a grand slam for same-sex marriage, but they certainly constitute a homerun. This weekend is gay pride weekend in cities all over the world. I think these decisions make the celebration, and our annual excuse to drink champagne directly from the bottle, a little more compelling.
