Dead and buried debates

Dead and buried debates
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The trio of deeply important rulings handed down by the US Supreme Court last week were remarkable in how simultaneously symbolic and functional they were. Or, to put it another way, the rulings weren’t nearly as consequential as they first seemed, but were tremendously important in terms of what they represented. But then again, the magnitude of what they represented also allowed them to become more consequential by the sheer weight of what they symbolized.

Here, let me explain.

Ruling number one involved affirmative action, the 1960s-era idea that the historic socioeconomic disadvantages faced by poor minorities can be best overcome by giving them preferential treatment in job hirings and school enrollment. The case in question was entitled Fisher v. University of Texas, and as I noted in an earlier cartoon on the subject, it centered around a white kid (Fisher) who had her application at the U of T rejected because the school evaluates the desirability of new students partially on the basis of their race, with whites being considered less desirable than minorities for reasons of, you guessed it, affirmative action.

In the past, the Supreme Court has ruled with a fairly skeptical eye towards the constitutionality of the racial discrimination such affirmative action policies obviously require, with the emerging consensus holding any publicly-financed school that uses race as a factor in enrollment must have a very strong moral justification for doing so. Merely allowing blacks and Hispanics to attend classes is not justification enough, but creating a “diverse” campus population is.

Last Monday’s ruling further consolidated this conclusion. The Supremes voted 7-1 to delegate the responsibility for resolving the Fisher dilemma to the Fifth Circuit Court of Appeals, which had heard earlier arguments in the case. And in considering the Fisher arguments a second time, instructed Justice Anthony Kennedy on behalf of the majority, the lower court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity” before deciding if U of T’s affirmative action program deserves to survive. The school, he added, bears “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

It was, in short, a decision that seemed weirdly technical and inconclusive on first glance (“Lacking Definitive Ruling on Affirmative Action, Both Sides Claim Victory” said the New York Times) but in practice consolidated a status quo that makes incremental hostility to affirmative-action-as-usual the new normal. Even the liberal-minded justices on the Court agreed that so-called “strict scrutiny” must be used in evaluating any program of racial prioritizing by a public institution. Hard evidence must be produced to justify why diversity matters, what diversity even means, and how institutions can seek the benefits of diversity through multiple techniques, with reverse-racism being the least desirable. The days of race-quota affirmative action being an unquestioned good unto itself are irreversibly over, and depending how critical the 5th Circuit winds up being, may soon be even more over yet.

But if the affirmative action debate seems to be flowing one way, the discussion over gay marriage is certainly headed in the opposite. In a 5-4 ruling last Friday, the court voted to scrap the Defense of Marriage Act (DOMA), the landmark 1996 piece of legislation in which the federal government defined “marriage” as merely “one man and one woman.”

This ruling was also complicated and technical. Marriage is not, technically speaking, a federal jurisdiction under the US Constitution, and to the extent the DOMA actually did anything, it merely denied various federal benefits, particularly tax breaks, to gay couples that had been married in a state where that’s legal. Overturning DOMA thus does not make same-sex marriage legal in any individual state — who still hold that ultimate power — but it does create an unsettling and powerful dichotomy in which the feds now recognize the legitimacy of a right the states do not.

Once again writing for the majority, Justice Kennedy ruled that DOMA’s “principal purpose is to impose inequality” and “identify a subset of state-sanctioned marriages and make them unequal.” There was no compelling reason, he held, for the government of the United States to care one way or another about who’s marrying whom, and the harm inflicted upon the “dignity and status” of gay couples through such arbitrary lawmaking was in fundamental conflict with the Constitution’s promises of equal protection for all citizens.

Kennedy’s logic represented a continued consolidation of his gay rights advocacy on the Supreme Court over the years. As a moderate conservative on a bench of ideologically divided justices, his unique (some say eccentric) interest in gay equality has single-handedly helped push the court to narrow majorities on gay questions three times now, first by throwing out a discriminatory amendment to the Colorado state constitution then by decriminalizing same-sex “sodomy,” and now by substantially retooling the federal definition of marriage.

In the aftermath of the DOMA ruling, some have suggested the Obama administration can now make moves to impose a watered-down sort of national gay marriage through the backdoor. At present, the various agencies and departments of the federal executive branch employ a patchwork of different standards in determining whether or not a marriage is valid for the purposes of doling out benefits. Sometimes it depends on where you were married originally, sometimes it depends on where you live presently. In a post-DOMA world, it’s therefore in a gay marriage-friendly administration’s interests to promote whatever criteria allows the feds to “recognize” the most same-sex couples, which would probably mean employing a universal “where you were married counts” standard. Since 14 non-gay marriage states border the 13 states where same-sex marriage is legal, a plan to promote out-of-state “marriage tourism” among gay couples would have the net effect of de facto legalizing same-sex weddings for well over half of the US population.

Or they could just wait around a while. With the Court’s other seminal gay marriage case this season, the so-called “Prop 8” case in California that was supposed to settle whether or not it was constitutional for a state to ban same-sex marriage, getting thrown out on a technicality, there’s nothing to stop the Supreme Court from eventually issuing a ruling on that clearer, broader question. And so long as Kennedy remains on the court, it’s pretty clear what their answer will be.

Lastly, the Supremes ruled 5-4 last Thursday to considerably retool the corrective measures of the 1965 Voting Rights Act, which seeks to bar racial discrimination at the polls. “Retool,” is, of course, a charitable verb. Most critics of the ruling have dubbed it a “gutting.”

Passed as part of President Lyndon B. Johnson’s sweeping anti-racism initiatives, the VRA explicitly seeks to prevent any state government from embarking upon initiatives that would “deny or abridge the right of any citizen of the United States to vote on account of race or color.” In practice, the cornerstone of implementing this goal was the act’s powerful Section 5, which placed the onus on certain… well, let’s just call a spade a spade and say “historically racist” states from running their own elections without first getting clearance from the federal Department of Justice. In other words, in nine southern states (and a few scattered counties in the north) virtually every administrative decision involving elections, from where to place voting stations to how long they stay open to who hires the vote counters, had to gain prior consent from the US Attorney General before happening.

But are those states still racist enough to justify this kind of federal paternalism? Chief Justice John Roberts, in his majority opinion (backed by good ol’ Anthony Kennedy) said no. The original act was good, he wrote, but “nearly 50 years later, things have changed dramatically.” As proof, he included a chart on page 15 of his ruling showing the comparative rates of race-based voter participation in six former “Jim Crow” states between 1965 and 2004. In every single one, black voter participation was now basically at par with white turnout — in fact, in Georgia and Mississippi blacks actually voted more than whites. So why continue to reject the federalist principle of equal treatment of 50 equal states in the name of “decades-old data and eradicated practices?”

But the majority decision did not abolish Section 5, it merely called for Congress to create new standards for supervising the administration of elections in racist states using contemporary data and current practices. The New York Times, for instance, has a number of clever maps illustrating ways to measure racism in the 21st century that might get the ball rolling.

But really, let’s not kid ourselves here. The idea that Congress, particularly the House of Representatives with its Republican — which is to say, largely southern — majority would ever come to some sort of bipartisan consensus over what racism means and what states have the most of it seems like the ultimate pipe-dream. The era of Section 5 oversight has probably been de facto abolished for the time being, which helps explain the giddy reaction of states like Texas, who are now happily planning to move forward with their controversial voter ID laws.

So three massively important rulings, yet each supremely legalistic and incremental. None go as far as critics feared, but all go far enough to provoke considerable delight among supporters.

If there was a single expression to summarize the spirit of all three decisions, it would be “we saw this coming.” As the repercussions of the rulings begin to be felt, one imagines we’ll be hearing that line a lot more.


  1. OldsVistaCruiser

    The U.S. Supreme Court should use the 14th Amendment, most specifically the second sentence of Section 1, as the basis for overturning all gay marriage bans throughout the United States, using their 1967 Loving v. Virginia decision as the precedent.

    That sentence in Amendment 14 reads, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "

    Unfortunately, those who oppose gay marriage use the same "sanctity of marriage" argument that their fathers used 50 years ago to oppose "miscegenation." Equal rights for all!

    Happy Independence Day to my fellow citizens of the United States of America!

  2. Dryhad

    Well that's why things like DOMA are using the tactic of defining marriage as being between a man and a woman. If that is how marriage is defined then there's no abridgement of privileges: everyone can marry (never mind those who don't want that sort of marriage). From the sounds of it, what brought down DOMA was the fact that same sex marriages already exist so the act would be depriving those in such marriages of their existing marriage. A subtle distinction, but such is law.

  3. Jake_Ackers

    Same could be said about the First Amendment for defending traditional marriage while at the same time using the First Amendment for supporting equal rights. Aka same rights for everyone (gay, straight or polygamist) and use the same word for everyone. But gov't can't define traditional, gay nor polygamist marriages or any other kind. I thought the Supreme Court was going to do that. Well, at least there are more equal rights now compared to before the decision.

    On Dryhad's point about DOMA. I thought the Supreme Court was going to say DOMA was legislating marriage and could of said that Congress can't legislate the word but still must give equal rights. But I guess it's like what Simon said, the Court seemed scared of what Kennedy was going to decide. For me it sounded like a cop out.

  4. Simon

    "And so long as Kennedy remains on the court, it’s pretty clear what their answer will be."

    I don't know that it is. I've heard it suggested that the reason for the bipartisan majority (Roberts, Scalia, Ginsburg, Breyer, Kagan) of five punting the case back down is that none of those five trusted Kennedy to make what they thought would be the right decision. The Democrats thought there was a possibility that he might let Prop 8 stand in California (bad outcome), while the Republicans thought there was a possibility he might legalise same-sex marriage nationwide (bad outcome).

    "So why continue to reject the federalist principle of equal treatment of 50 equal states"

    Well, it may not be a good reason on *policy* grounds, but a good *legal* reason to reject this would be because there is no such "principle" in the Constitution. The nearest thing is the requirement that criteria for a state to be admitted to the union not discriminate among different states.

    And add to that that the process to be removed from section 5 coverage (universal & uniform for all covered jurisdictions) is astonishingly simple, yet no state had actually managed to achieve it (though some counties had).

  5. Jake_Ackers

    Yah I think that was their reasoning too because this was a total cop out by the Supreme Court so they must of been scared of something.

  6. J.J. McCullough

    I feel like equality of the states is certainly a strongly implied right, in the same way a right to privacy is. The fact that all 50 states get equal representation in the Senate and that this equality of representation cannot be denied, along with the constitutional amending formula and the equal terms of admission you mentioned, all add up to a federal system where it's clear that each "state," as a political entity, clearly holds some sort of right of equal political treatment — on governance questions, at least.

  7. Jake_Ackers

    Two things about the Voter Rights Decision that shows how messed up our politics is.

    1) Isn't applying a law to only some states completely unconstitutional? Isn't the law suppose to be the same one for everyone?

    2) You know when a teacher gives back your test and tells you to show your work instead of just giving the right answer? Yah, well the Supreme Court did the same thing with Congress and the Democrats yelled racism. The Supreme Court isn't saying the law is wrong, it's just saying it needs to be updated. If anything by saying it needs to be updated, is an admittance of the Supreme Court. They pretty much said that the law is working but their is still more progress to be made in the US. But no the Dems just yell racism again.

    The thing about Voter ID laws. Both sides are being distracted by it. How many people actually vote in someone else's name? Does it happen? Sure but that is few. How many people vote who aren't even suppose to be voting, that actually vote? Okay that is a more, I've actually know people who aren't citizens and have voted. And I think that is what the Voter ID laws are targeting, registration mostly.

    However, the biggest problem is the poll workers are the ones who vote in the name of people who didn't show up. That is the easiest type of fraud.

  8. rjlatrans

    The thing that kills me about the VRA law is that literally 2 hours after it was gutted, Texas passed a rezoning and Voter ID law that was ruled unconstitutional last election cycle.

    And I get that I am a US citizen, but I am kinda more concerned with the rights of the citizens within the state then the rights of the state itself. In that way I disagree with my ancestor Patrick Henry, who believed the constitution should have said "We the States" instead of "We the People". The problem is that when it is "We the States", the people on the whole tend to have less say. (See the whole debacle in Texas where 80% of the people disagree with the anti-women's health care law that the GoP are trying to cram through. 80%. I mean, come on.)

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