It has been quite a week at the Supreme Court of the United States, or SCOTUS. Judging by media accounts, in the past handful of days that esteemed Court has managed to:
- Turn back the clocks to 1965 by undoing voting rights protections in the south; and then
- Spring forward five decades by guaranteeing same-sex marriage rights.
Those media accounts are wrong. Be the smart person at happy hour tonight, and read on for what the Supreme Court’s decisions actually mean.
The Same-Sex Marriage Cases
Let’s start with the pair of cases that had everyone waving rainbow flags yesterday. I’ve previously explained those two cases on this blog. And, not to brag, I just want to brag and say that I predicted the result in both.
Anyway, a quick recap. In United States v. Windsor, Edith Windsor challenged the constitutionality of the Defense of Marriage Act (DOMA). Ms. Windsor had married her long-term partner, Thea Spyer, in New York State. Two years after their wedding, Ms. Spyer died, leaving her entire estate to her wife. Ms. Windsor tried to claim a tax exemption for surviving “spouses.” Although New York State recognized Ms. Windsor as Ms. Spyer’s spouse, under DOMA, the federal government could not, and did not. That’s because DOMA defined “marriage” as “only a legal union between one man and one woman” for all purposes under federal law. That meant Ms. Windsor had to pay nearly $400,000 in federal taxes that, had she been a man/husband, she would not have had to pay.
DOMA’s limiting definition affected same-sex wedded couples on more issues than just taxes. It prevented same-sex married couples from obtaining government healthcare benefits, certain bankruptcy protections, and the ability to file joint federal tax returns – to name just a few examples. At bottom, DOMA took away rights (and responsibilities) that twelve states and the District of Columbia now grant to same-sex couples.
Hollingsworth v. Perry involved proponents of Proposition 8, the ballot initiative that California voters passed to define marriage – for state purposes – as between a man and a woman. The law undid a ruling from the California Supreme Court that held that limiting marriage to heterosexual couples violated the California constitution. Two same-sex couples who wanted to marry challenged Proposition 8. The State of California refused to defend the law, so the proponents who had secured its successful passage did so instead. Those proponents lost when a lower federal court in California ruled that Proposition 8 is unconstitutional. The proponents appealed.
Both Windsor and Hollingsworth could have been decided on purely procedural/technical grounds: that the cases were not properly before the Supreme Court. One of the basic tenets of the judicial system is that courts are not supposed to issue “advisory opinions.” Instead, they are only supposed to act – through their rulings – when there’s an actual, live dispute being fought by parties who have real skin in the proverbial game.
The Supreme Court decided Hollingsworth, the Prop 8 case, on just those technical grounds. It ruled that the Prop 8 proponents had no “direct stake” in the case, and so they never should have been allowed to appeal the ruling they brought to the Supreme Court to decide. The significance of the Supreme Court’s ruling is that the District Court’s decision controls. What does that mean? Same-sex marriage is now legal again in California. Not because of anything the Supreme Court proclaimed, but because of what the lower court held.
The Court took a much different approach in Windsor. There, the Court decided the case shouldn’t turn on a technicality (even though the United States agreed with Ms. Windsor that DOMA was unconstitutional). After passing that hurdle, the Court went on to agree with the parties that DOMA was unconstitutional. What does that mean? If a state recognizes same-sex marriage, the federal government has to recognize the marriage too, and treat same-sex married couples the same way, under federal law, that it treats heterosexual married couples.
It is important to note that, while positive results for same-sex marriage supporters, neither of the cases makes same-sex marriage a constitutional right under the U.S. Constitution. Windsor comes close to doing so, and will surely be used to support that argument. But yesterday kept the same-sex marriage question on the same playing field as it has always been: it’s up to the states to decide whether they will recognize it.
Some other things about these decisions worth noting:
- For those who view the Supreme Court as an entirely political being, it’s worth noting that Hollingsworth – which, again, has the effect of re-legalizing same-sex marriage in California – was written by Chief Justice John Roberts (considered a conservative justice) and was joined by Justice Scalia (considered one of the MOST conservative justices). Justice Kennedy (known as the swing vote on the 9-member Court) wrote the Windsor opinion, but dissented from (ie. disagreed with) the majority opinion in Hollingsworth.
- Speaking of Justice Kennedy’s opinion in Windsor, it achieves the “right” result, but in an unfortunate way. In fact, I agree with much of Justice Scalia’s dissent in Windsor, up until the part where he concludes DOMA should have remained a law. Justice Kennedy quite frankly goes out of his way to decide this case; his argument for why it should not be thrown out on a technicality is thin, and you can see him reaching. He also does not give a clear explanation supporting his conclusion that DOMA is unconstitutional, bouncing from conversations about federalism, due process, and equal protection. Nowhere does he do a standard analysis of any of those constitutional inquiries, and nowhere does he contend with the sexuality-neutral reasons for why DOMA was passed. His opinion boils down to his conclusion – that he was able to get the other “liberal” members of the Court to buy into – that DOMA is mean-spirited and therefore inherently wrong. Anyone who agrees with him – me included – needs to recognize the fact that there is some intellectual dishonesty in so doing, at least to the extent you care about a consistent application of legal doctrine (which maybe only certain lawyers among us do), or complain about “activist” judges.
- There is also danger in Justice Kennedy’s opinion, in that he repeatedly states that the definition of marriage is the sole province of the states. The risk there is that states will enact laws doing just what Prop 8 and DOMA did – restricting the definition of marriage to a man and a woman. Under Justice Kennedy’s construct, the only way for those limiting laws to be overthrown will be (a) subsequent state votes that undo the discrimination; or (b) another case winding its way up to the Supreme Court and convincing a majority that there is a right – under the federal constitution – to same-sex marriage. That case will be both difficult to make, and it will be a long time coming.
The Voting Rights Case
This case was getting buzz earlier in the week. In Shelby County v. Holder, a County in Alabama challenged two sections of the Voting Rights Act of 1965 (VRA). The combined effect of the challenged sections was that the County could not make a change to its voting procedures until those changes had been approved by federal authorities in Washington, D.C.
The VRA was passed because, for nearly a century after the Fifteenth Amendment was adopted, Congress did very little to enforce the right to vote that amendment granted to all citizens, regardless of “race, color, or previous condition of servitude.” So as to jump-start the lagging enfranchisement, Congress enacted the VRA. It included three particularly important components:
- Section 2 forbids all the states from using any “standard, practice or procedure” that would deny or limit a person’s ability to vote.
- Section 4 identified certain “covered” jurisdictions that, as of 1964, were particularly offensive in their efforts to discriminate against minority voters.
- Section 5 said that, for any “covered” jurisdiction identified in Section 4, the ability to change voting laws would be subject to the double-checking in Washington noted above.
Sections 4 and 5 were intended to be temporary – five years only – since they (a) subjected only certain states to additional legal requirements; and (b) made a traditional state activity (holding/administering elections) subject to federal oversight. But every time those sections have been set to expire, Congress has renewed and extended them, most recently in 2006, for 25 years.
To be a covered jurisdiction under Section 4, a test was established in 1965. The states that failed that test were, perhaps not surprisingly, Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. By 1975, Alaska, Arizona and Texas had joined the group. Over the years, certain counties in North Carolina, California, New Hampshire, New York, Florida, Michigan, and South Dakota also became covered jurisdictions.
Against this backdrop, the majority’s opinion is actually more narrow than the popular press would have you believe. Here’s what the ruling is:
- The majority recognizes that voting discrimination still exists.
- The majority also, though, points out that progress has been made since 1965, and cites Congress’ own acknowledgment of that progress, even as it reauthorized the VRA in 2006.
- The majority notes that the “test” for becoming a covered jurisdiction under Section 4, though, has not changed in those intervening decades.
- The only part of the statute the majority takes issue with, then, is the coverage formula. According to the majority, that aged formula might not make sense anymore. Accordingly, the ONLY PART of the VRA that the majority ruled as unconstitutional is that formula. And in so doing, the Court specifically invites Congress to “draft another formula based on current conditions.”
- Section 2 remains on the books, meaning offensive voting practices can still be challenged through litigation. In addition, another part of Section 4, which outlaws nationwide any “test or device” as a prerequisite to voting, is unaffected. Section 5 also remains, so the “preclearance” procedures will be operative just as soon as Congress comes up with a new coverage formula.
Now, whether the majority is correct in holding that Congress didn’t appropriately reconsider the coverage formula when it re-upped the VRA in 2006 is up for debate. Justice Ginsburg, who authored the dissent in Shelby County, certainly puts forward a strong argument that the majority got this wrong.
The point here, though, is that Shelby County did not gut the VRA, and it does not pretend that voting discrimination no longer exists. It does not even say that the preclearance process for states with discriminatory practices should not be used. It stands for the much more narrow – albeit arguably frustrating – proposition that Congress needs to reevaluate where that discrimination is actually taking place today, and target those jurisdictions with Section 5’s special requirements.
Whew! That’s all for today, folks.