Thursday, June 27, 2013
Supreme Court Mayhem Thursday!
So... It all happened this week. Here is the rundown:
1) In two cases on same-sex marriage, both decisions favored proponents of such unions. In one, the Court struck down the federal Defense of Marriage Act (DOMA) as a violation of equal protection. According to the NY Times Justice Kennedy concluded that “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “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.”
1) In two cases on same-sex marriage, both decisions favored proponents of such unions. In one, the Court struck down the federal Defense of Marriage Act (DOMA) as a violation of equal protection. According to the NY Times Justice Kennedy concluded that “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “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.”
He said the law was motivated by a desire to harm gay and lesbian couples and their families, demeaning the “moral and sexual choices” of such couples and humiliating “tens of thousands of children now being raised by same-sex couples.”
In a separate case, the Court let stand a California trial court ruling which struck down Proposition 8, which banned same-sex marriage there. It wasn't really on the merits, though-- instead, the Court found that once the State dropped its appeals (which it did after losing the first round) others did not have standing to press it further.
2) Voting Rights Act
The Court struck down the part of the Voting Rights Act which required federal approval of any changes to state voting rules in several states (along with some municipalities, including Manhattan).
3) Affirmative Action
On affirmative action, the Court held that the highest level of scrutiny applies to such cases, and sent it back to the Court of Appeals for further consideration. Again, as per the NY Times:
Colleges and universities, Justice Kennedy wrote for the majority, must demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.
That requirement could endanger the Texas program when it is reconsidered by the United States Court of Appeals for the Fifth Circuit, in New Orleans. The university’s program admits most undergraduates under race-neutral criteria,accepting all Texas students who graduate near the top of their high school classes. But the university also uses a race-conscious system to choose the remaining students.
So, what do people think? Good outcomes?
Comments:
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Living in the south I am very disturbed by the ruling on the Voting Rights Act. We have a legislature running wild in NC and they were already changing the voting rules prior to this ruling. They tried doing it before the November election but failed so now that they have a huge majority they are plowing ahead.
They have turned back the clock on all types of progress. Voting Rights, Gay Rights, Fracking, taxes (Grover Norquist is in the house), reversal of some smoking bans (in the works), building codes (making them less green). Laws that say municipalities can't enact stronger codes than the state. The speed limit (raising it) - I guess they can't get from Raleigh to their beach homes fast enough.
They have turned back the clock on all types of progress. Voting Rights, Gay Rights, Fracking, taxes (Grover Norquist is in the house), reversal of some smoking bans (in the works), building codes (making them less green). Laws that say municipalities can't enact stronger codes than the state. The speed limit (raising it) - I guess they can't get from Raleigh to their beach homes fast enough.
Our local school district MAY be directly affected by the VRA ruling. The school board is currently 4 black trustees and 3 white trustees. The is a larger black population in our district by a few percentage points.
The district as a whole had a vote, driven by white members of the community, to change the board's make-up from 7 single member districts to 5 single and 2 at large positions in an attempt to change the composition of the board. That plan has been blocked repeatedly under the VRA. It MAY move forward now without pre-clearance. However, as I understand it, that will make the new board plan susceptible to being overturned in post-clearance actions.
Just more fighting about race. It is devastating our community.
The district as a whole had a vote, driven by white members of the community, to change the board's make-up from 7 single member districts to 5 single and 2 at large positions in an attempt to change the composition of the board. That plan has been blocked repeatedly under the VRA. It MAY move forward now without pre-clearance. However, as I understand it, that will make the new board plan susceptible to being overturned in post-clearance actions.
Just more fighting about race. It is devastating our community.
In the VRA case, Justice Scalia was happy to substitute his judgment for that of Congress on an equal protection issue where authority is expressly granted to Congress in the 14th amendment to legislate to enforce the amendment.
In the DOMA case, he said that the Court must defer to the Congress.
Although employing lots of what he himself might call "argle bargle," he seems most interested in the result he wants; I think these two decisions cast his hypocrisy about originalism in the sharpest relief.
In the DOMA case, he said that the Court must defer to the Congress.
Although employing lots of what he himself might call "argle bargle," he seems most interested in the result he wants; I think these two decisions cast his hypocrisy about originalism in the sharpest relief.
Steve - I've heard this criticism of Scalia in several places. I have two thoughts:
1) The opinion Scalia joined in for the VRA case actually did a rational basis analysis, taking into consideration the arguments of the government and responding to them. Scalia's main criticism of the DOMA decision was that it failed to even address the legitimate arguments advanced in favor of DOMA (for example, the question of choice of law and the potential conflicts created by the full faith and credit clause). A substantial portion of Scalia's criticism is about process, and the seeming willingness of the majority in the DOMA opinion to forego a full due process or equal protection analysis for political expediency. The same can not be said about the decision in the VRA case;
2) Your criticism is actually much more apropos in regards to the majorities decision in the DOMA case. Kagan wrote a dissent in the VRA case, and said:
"The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation."
Her dissent goes on to further extrapolate on the idea of congressional authority, and whether the Court should overturn the will of a justifiably elected Congress. Yet, in the DOMA case she joins an opinion that has no problem calling the Congress and President that signed DOMA into law in 1996 a bunch of bigots. Talk about an about face. In a 24 hour time period, Kagan and the others in the minority in the VRA case had forgotten all about deference to the desires of our elected representatives and decided to strike down laws on the mere assumption that there could be no justification for DOMA other than bigotry.
1) The opinion Scalia joined in for the VRA case actually did a rational basis analysis, taking into consideration the arguments of the government and responding to them. Scalia's main criticism of the DOMA decision was that it failed to even address the legitimate arguments advanced in favor of DOMA (for example, the question of choice of law and the potential conflicts created by the full faith and credit clause). A substantial portion of Scalia's criticism is about process, and the seeming willingness of the majority in the DOMA opinion to forego a full due process or equal protection analysis for political expediency. The same can not be said about the decision in the VRA case;
2) Your criticism is actually much more apropos in regards to the majorities decision in the DOMA case. Kagan wrote a dissent in the VRA case, and said:
"The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation."
Her dissent goes on to further extrapolate on the idea of congressional authority, and whether the Court should overturn the will of a justifiably elected Congress. Yet, in the DOMA case she joins an opinion that has no problem calling the Congress and President that signed DOMA into law in 1996 a bunch of bigots. Talk about an about face. In a 24 hour time period, Kagan and the others in the minority in the VRA case had forgotten all about deference to the desires of our elected representatives and decided to strike down laws on the mere assumption that there could be no justification for DOMA other than bigotry.
# posted by 
: 11:11 AM
: 11:11 AM
D-Kendall - do you live in Wake County NC? They are doing the same thing with the school board and for the same reason. And somehow the state legislature barged its way in to the issue as well.
Good to hear from you, RRL! The truth is, every justice on the Court believes in "Judicial activism," as shown through their actions.
I don't think there is universal agreement regarding the meaning of the term "judicial activism." I think the CA case was a pretty obvious dilatory tactic. If Kennedy is going to impose gay marriage on the country, let him do it now. Roberts (again) and Scalia disappoint.
Having read the opinion twice yesterday, (admitedly at a fast pace) does anyone think it would be fair to characterize Kennedy's opinion as applying heightened scrutiny standard with out saying it?
I appreciate his conclusion, but found his rational disappointing.
Also, what is one to make of the logic that Congress intended to do something to the citizens of NY prior to NY passing a gay marriage bill. Congress could not possibly have intended to discriminate against a class that NY sought to protect because the class was not yet protected by NY at that time. Kennedy says a whole lot about intent, but when President Clinton signed the bill, his intent was to comply with the status quo of every state in the union.
I would have preferred a tighter opinion that directly confronted the claims of conservatives, making clear that gay people and strait people are similarly situated--they both mary for reasons other than procreation, the both raise children well, and they are both subject to 1000 federal regulations--therefore they are entitled to equal protection under the law. The rhetoric of equality plays well with supporters, (and I think there is a place for it in the opinion) but it does little to address the arguments of the opposition.
I appreciate his conclusion, but found his rational disappointing.
Also, what is one to make of the logic that Congress intended to do something to the citizens of NY prior to NY passing a gay marriage bill. Congress could not possibly have intended to discriminate against a class that NY sought to protect because the class was not yet protected by NY at that time. Kennedy says a whole lot about intent, but when President Clinton signed the bill, his intent was to comply with the status quo of every state in the union.
I would have preferred a tighter opinion that directly confronted the claims of conservatives, making clear that gay people and strait people are similarly situated--they both mary for reasons other than procreation, the both raise children well, and they are both subject to 1000 federal regulations--therefore they are entitled to equal protection under the law. The rhetoric of equality plays well with supporters, (and I think there is a place for it in the opinion) but it does little to address the arguments of the opposition.
The court has become disconnected from real life. Real life has consequences to real people. The ruling on the Voting Rights Act was followed within hours by states making plans to move back the clock on voting rights, to advantage the ruling party. This makes the case that racial politics have not gone away and that is a shame. More shameful is that our highest court gutted the VRA, that so many worked so hard for and is needed now more than ever, because in their judgement the fight is over and all is fair. Wow.
RRL Is it really an assumption that
the only justification for DOMA is bigotry? If it isn't bigotry what is the justification? If it was deemed intolerant and based on blindly held beliefs shouldn't it be thrown out? I have heard no other justification except the believe that it is an attack on conventional marriage. I think that this is definitely a blindly held believe. We all have narrowly based opinions and are bigots, but it shouldn't be the reason for our laws.
RRL Is it really an assumption that
the only justification for DOMA is bigotry? If it isn't bigotry what is the justification? If it was deemed intolerant and based on blindly held beliefs shouldn't it be thrown out? I have heard no other justification except the believe that it is an attack on conventional marriage. I think that this is definitely a blindly held believe. We all have narrowly based opinions and are bigots, but it shouldn't be the reason for our laws.
The Fourteenth Amendment says that everyone born in the US or naturalized is a citizen of the US and the state in which they reside. The Fifteenth Amendment says that the right of a United States citizen to vote may not be denied by the US or a State on grounds of race. Like the Fourteenth, the Fifteenth may be enforced by the Congress by appropriate legislation. (Says so right in the Amendments.)
http://left.mn/2013/06/repealing-the-civil-war/
Unlike marriage, there is an explicit constitutional role for the Congress in voting, and in equal rights and due process.
If the Fifteenth and a Half Amendment had said that Congress could regulate the institution of marriage by appropriate legislation, I might buy RRL's argument.
http://left.mn/2013/06/repealing-the-civil-war/
Unlike marriage, there is an explicit constitutional role for the Congress in voting, and in equal rights and due process.
If the Fifteenth and a Half Amendment had said that Congress could regulate the institution of marriage by appropriate legislation, I might buy RRL's argument.
The VRA decision may adversely affect my community, but I've taken to adopting a stoic stance on it. Smurves are horribly underrepresented in Charleston even with the VRA's provisions in place.
Meanwhile, my son Ted and his "life partner" Gerry are thinking about getting married now that they can get federal benefits, but they'd have to travel to Vermont do it, since it's the only state in the Union that has both gay marriage and Smurf marriage in place. We've got deep roots in S.C., though, and I kept hoping that the DOMA decision would make it possible for my son to marry the Smurf of his life right here in our ancestral home, but I suppose not...
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Meanwhile, my son Ted and his "life partner" Gerry are thinking about getting married now that they can get federal benefits, but they'd have to travel to Vermont do it, since it's the only state in the Union that has both gay marriage and Smurf marriage in place. We've got deep roots in S.C., though, and I kept hoping that the DOMA decision would make it possible for my son to marry the Smurf of his life right here in our ancestral home, but I suppose not...
# posted by : 11:13 AM
: 11:13 AM << Home
