Back to the states

On the dramatic last day of its term, the Supreme Court declined to declare outright gay marriage a protected right, but its decision striking down the Defense of Marriage Act may have paved the way. Justice Anthony Kennedy, writing the majority opinion, said DOMA violated state laws that give gay married couples “equal protection,” a justification that raised the blood pressure of traditional marriage proponents. Yet the court’s other major marriage decision, by Chief Justice John Roberts, offered a counterbalance: Roberts dismissed California’s Proposition 8 case on standing, allowing states to continue to debate the definition of marriage.

As expected, Kennedy held forth a states rights argument to justify striking DOMA: “The federal government, through our history, has deferred to state law policy decisions with respect to domestic relations,” he wrote. But he went further, saying that DOMA had violated the equal protections that states had granted to same-sex married couples. DOMA had created “second-tier marriages” by not recognizing gay married couples, Kennedy said.

“It tells those [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” he wrote. “It humiliates tens of thousands of children now being raised by same-sex couples.”

Kennedy tried to thread a needle: if he had declared DOMA a violation of equal protection full stop, that would quickly pave the way to a constitutional right to gay marriage. He tried to limit his ruling by saying the only gay couples who qualified for equal protection were those in states that had legalized gay marriage. But Justice Antonin Scalia argued in his piping-hot dissent, which he read forcefully from the bench, that Kennedy was making a fuzzy distinction. Scalia said Kennedy couldn’t declare marriage an issue for states to decide while at the same time giving “a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”

Scalia called Kennedy’s opinion “nonspecific hand-waving” and “legalistic argle-bargle.” “If this is meant to be an equal protection opinion, it is a confusing one,” Scalia wrote. Kennedy has now authored all three of the Supreme Court’s gay-rights opinions, a legacy that no doubt played into his ruling.

The only immediate effect of the ruling is that same-sex married couples can begin sharing federal benefits. The opinion only applies to Section 3 of DOMA, which defines marriage as between a man and a woman for the purposes of federal benefits. Another part of DOMA still stands, which says that states do not have to recognize the marriage laws of other states.

The fights at the state level will continue after Roberts dismissed the Prop 8 case. The state of California had declined to defend Prop 8, a voter-passed initiative that defines marriage as between a man and a woman, and Roberts said the private defenders of the law had no standing. His dismissal invalidates the 9th U.S. Circuit Court of Appeals opinion below, which means that the district-court level ruling against Prop 8 stands. But the district ruling doesn’t legalize gay marriage in California: it applies only to the parties in that specific case.

Because California has said it will not enforce Prop 8, the decision about whether to issue marriage licenses is up to court clerks themselves. Likely if a clerk decides not to give a same-sex couple a marriage license, that will kick off another lawsuit against Prop 8 and more court fights. But for now, Roberts’ decision (joined by an unusual coalition of Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan) allows the 35 state laws that define marriage as between a man and a woman to stand.

The Supreme Court also issued two rulings in the final week of its term that will affect racial minorities. The blockbuster: Striking down the Voting Rights Act’s Section 4, the formula that determines which states and counties with a history of racial discrimination must submit a process known as “preclearance.” Jurisdictions under preclearance must gain approval from the Department of Justice (DOJ) for any changes to election laws or procedures. Absent a new formula from Congress, the ruling makes DOJ’s enforcement of preclearance more difficult.

Chief Justice John Roberts, writing for a majority of the court that included Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, said times have changed since the act was passed, and the formula for most-discriminatory areas of the country was outdated: “In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

The dissenters complained that for the five justices in the majority, “the very success of Section 5 of the Voting Rights Act demands its dormancy.” Without Sections 4 and 5, DOJ can still prosecute discriminatory election practices under Section 2 of the act, but the burden of proof shifts from the states to DOJ, which has to decide whether to play whack-a-mole each time a state changes its procedures (see a PDF of the opinions at http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf).

The Supreme Court had hinted in a previous challenge to the Voting Rights Act that Congress should adjust the formula to the modern era, saying the act “imposes current burdens and must be justified by current needs.” But Congress did not substantially change the formula when it reauthorized the act in 2006 for 25 years.

The court issued a more unified decision on a case challenging affirmative action policies at public universities, after eight months of negotiations among the justices. The 7-1 ruling by Justice Anthony Kennedy imposed stricter legal scrutiny on universities’ affirmative action policies—schools must show courts they can’t achieve diversity in any possible way but through considering race in admissions. But, contrary to expectations, the court declined to strike down its precedent allowing affirmative action, instead sending The University of Texas at Austin case back to the 5th U.S. Circuit Court of Appeals.

Practically speaking, affirmative action policies will be easier to challenge in court, but lawyers have had a difficult time finding white students who want to be the plaintiffs in such lawsuits. Justice Ruth Bader Ginsburg was the lone dissent, saying the original 5th Circuit ruling was correct, and Justice Elena Kagan recused herself from the case.