Thursday, June 27, 2013

Supreme Court Rulings Advance Same-Sex Marriage

Same-sex Marriage Granted Federal Government Recognition, while California's Prop 8 Suit Dismissed.  Dismissal Clears Way for Same-Sex Marriage in Golden State

The U.S. Supreme Court ruled yesterday that same-sex married couples are entitled to federal benefits, striking down section 3 of the 1996 Defense of Marriage Act (DOMA) as unconstitutional under the Fifth Amendment and granting full federal recognition of same-sex marriage.   The Court's ruling on Windsor v. the United States, delivered by Justice Kennedy, establishes that same-sex couples married in states where it is legal will receive the Social Security, tax, federal health and other benefits that heterosexual couples receive.

“What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person,” wrote Kennedy.

Withholding federal recognition of same-sex married couples places them “in an unstable position of being in a second-tier marriage,” Kennedy wrote. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify.”

Further,  Kennedy wrote that the denial of such federal recognition under DOMA "humiliates the tens of thousands of children now being raised by same-sex couples."

Justice Kennedy was joined in the majority by Justices Ginsburg, Breyer, Sotomayor and Kagan.

The ruling did not grant a constitutional right to same-sex marriage and therefore does not directly affect state bans on same-sex marriage nor require states with such bans to recognize same-sex marriages performed in other states.  However, it is likely that this ruling will bolster future constitutional challenges to state bans on same-sex marriage.

Windsor v. the United States specifically concerns 83-year-old Edith Windsor of New York, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009. Windsor married Thea Spyer in 2007 after doctors told them Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.

Windsor would have paid nothing in inheritance taxes if she had been married to a man.

The Supreme Court's non-ruling on California's Proposition 8 (Hollingsworth v. Perry), which wrote a same-sex marriage ban into the state constitution, lets stand a federal district ruling by Judge Vaughn Walker from August of 2010 that held Prop 8 unconstitutional under the Fourteenth Amendment.

The Supreme Court yesterday held that the sponsors of Prop 8 did not have legal standing to appeal the case.  This means the case returns to California where Governor Jerry Brown already has stated that he intends to enforce Judge Walker's ruling from 2010 and allow same-sex marriages to resume, possibly as soon as next month.   

The Los Angeles Times has a decent step-by-step explanation of the legal basis by which the Supreme Court refused to rule on the Prop 8 here.

For more background and analysis see:

Full Los Angeles Times Coverage (including a very good timeline on Prop 8)

The Supreme Court Kills the 'Gay Marriage is Bad for Kids' Argument (Philip Cohen, The Atlantic)

Will the DOMA Decision Kill Gay Marriage Bans?  (Washington Post)

How Edith Windsor Learned She Won (New Yorker)

Justice Scalia's Blistering Dissent on DOMA (The Atlantic)

Ban on Gay Marriage Overturned (Los Angeles Times article from 2010 on Judge Walker's decision ruling overturning Prop 8).

Tuesday, June 25, 2013

Supreme Court Ruling Strikes Key Provisions of the Voting Rights Act

This law covers many pages. But the heart of the act is plain. Wherever, by clear and objective standards, states and counties are using regulations, or laws, or tests to deny the right to vote, then they will be struck down. If it is clear that State officials still intend to discriminate, then Federal examiners will be sent in to register all eligible voters. When the prospect of discrimination is gone, the examiners will be immediately withdrawn. 
And, under this act, if any county anywhere in this Nation does not want Federal intervention it need only open its polling places to all of its people.

In a 5-4 vote, the United States Supreme Court today issued a ruling that struck down key provisions of the Voting Rights Act of 1965, landmark legislation prohibiting race-based discriminatory voting practices by states, subject to federal government oversight and enforcement.

As we discuss in our junior U.S. history classes, the Voting Rights Act ended nearly a century-long-record of voter suppression tactics such as poll taxes and literacy tests largely aimed at African Americans.   Specifically, the Act prohibits states from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color."

The decision in this case, Shelby County v. Holder, ends requirements in the Act that certain states and jurisdictions -- mostly in the South -- with a history of race-based discrimination and low voter registration and turnout gain pre-approval (called preclearance in the Act) from the federal government before enacting changes to their election laws.   

More specifically, the ruling strikes provisions in the Act that established the formula for determining which states and jurisdictions are subject to federal oversight.  It leaves intact provisions allowing for federal oversight, but without direction as to how those be used.  In practical terms, the provisions are now inapplicable.

In his ruling, Chief Justice John Roberts noted that the preclearance provisions were “based on 40-year-old facts having no relationship to the present day.” 

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

In other words, it is now up to Congress to pass a new bill to determine where federal preclearance of voting laws would be required.

Chief Justice Roberts was joined in the majority by Justices Scalia, Kennedy, Alito and Thomas (who wrote a concurring opinion).   Justice Ginsburg wrote a dissent and was joined by Justices Breyer, Sotomayor and Kagan.

This map demonstrates the jurisdictions that had been subject to voting law preclearance by the federal government.  The light purple indicates those states/jurisdictions added in 1970 and 1975 amendments based on their use of English-only ballots where 5% of the voting-age citizens speak a single language other than English.

Map: New York Times

See the following from John Schwartz of the New York Times for more on the Roberts ruling and Ginsburg's dissent:

For a fascinating look at some of the history of the Voting Rights Act passage, check out this from Pacific Standard:

Monday, June 24, 2013

The Supreme Court on University of Texas at Austin's Affirmative Action Program

Fisher v. University of Texas Austin:  Supreme Court Sends Affirmative Action at the University of Texas Back to Lower Court for Strict Scrutiny

In a 7-1 decision, the U.S. Supreme Court today affirmed the use of race by colleges and universities as part of the admissions process in order to advance a state's compelling interest in ensuring a diverse student body.   But that's not the end of the story.

The Court vacated and remanded the earlier decision by the U.S. Court of Appeals, 5th Circuit, holding that the lower court did not scrutinize adequately the University of Texas Austin inclusion of race in its admissions process.  This means the case now goes back to the lower court for reconsideration using what is called the strict scrutiny standard, which the Supreme Court is saying was not applied in the earlier 5th Circuit ruling.

Before discussing strict scrutiny, a quick review of the case is in order.  Abigail Fisher is a white woman who claims she was denied admission to the University of Texas due to a race-conscious admission policy that violated her constitutional rights guaranteed by the Fourteenth Amendment. Fisher was not in the top ten percent of her high school graduating class (which would have guaranteed her admission based on academic criteria alone), so she was placed in an admission pool that took other factors into account, including race.  Ultimately, the university rejected her application.

Federal courts use three levels of scrutiny when considering whether acts and policies of the government adhere to the U.S. Constitution.  The lowest form of scrutiny is called rational basis, which means that the courts find that the government acted reasonably and not in an arbitrary manner when enacting the law or policy in question. 

Next, is heightened scrutiny, which is a standard that has been used when ruling on issues related to gender discrimination.  Under heightened scrutiny, governments must be able to demonstrate that sex-based laws and policies must serve important governmental objectives and are substantially related to the achievement of these objectives.  

We are awaiting important decisions this week on California Proposition 8's ban on same sex marriage (Hollingsworth v. Perry) and the federal government's Defense of Marriage Act (United States v. Windsor), which could turn on the Supreme Court's application of the heightened scrutiny standard.

Finally, there is strict scrutiny, which the Supreme Court is contending in this ruling must be applied in the lower court consideration of the University of Texas at Austin's admissions process.  Under strict scrutiny the government has the burden to prove that its law or policy is necessary to achieve a compelling state interest.  In other words, under strict scrutiny the burden shifts to assume that the law or policy in question is actually unconstitutional unless the government can demonstrate that the issue in question is narrowly designed to meet the compelling state interest the government is attempting to advance.   The Supreme Court has previously ruled that race-based policies create what it has termed suspect classifications that are presumed impermissible under the Constitution unless the government is advancing an interest that can survive strict scrutiny.

In his decision in this case, Justice Anthony Kennedy, wrote the "university must prove that the means chosen" to attain diversity "are narrowly tailored to that goal," adding that the highest level of legal standard must be met before institutions use diversity programs.

"Strict scrutiny [of the policy] imposes on the university the ultimate burden of demonstrating, before turning to racial classification, that available, workable race-neutral alternatives do not suffice."

For some different perspectives on this case, including who can claim victory Ms. Fisher or the University of Texas, see the following:

NPR "The Two Way" Blog
Supreme Court: Race Still Matters (, Sally Kohn)