Opinion

The Great Debate

Court due to make second trip down the aisle

Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”

Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states  still ban the practice. What the court does then is anyone’s guess.

There’s good historical precedent for Liptak’s prediction. Take the case of poll taxes, which required people to pay money (including back taxes) in order to be able to vote. The Supreme Court in 1937 upheld poll taxes, provided they were not applied in a racially discriminatory way. But states started doing away with them, and the country passed the 24th Amendment to ban them in federal elections.

When four states still used poll taxes in state elections, the Supreme Court in a 1966 case, Harper v. Virginia Board of Elections, held the practice unconstitutional. It was classic Liptakian “mopping up.”

That Harper decision was controversial, since the question was whether the court needed to get into the mop-up business in the first place. If history was inevitably moving in this direction, why is court interference necessary? Indeed, Harper started out as a case affirming the poll tax, but the case was set for reargument after Justice Arthur Goldberg wrote a blistering draft dissent and three other justices changed their minds over the constitutionality of the poll tax in the summer of 1966.

The cost of America’s first black president

President Barack Obama addresses supporters at his election night victory rally in Chicago, Nov. 7, 2012. REUTERS/Adrees Latif

Barack Obama, America’s first black president, can be credited with many milestones — a comprehensive federal healthcare bill, taking down the world’s most wanted terrorist, signing the Fair Pay Act for gender pay equality, to name a few.

The obliteration of the Voting Rights Act, however, was certainly unintended. Despite the Justice Department’s zealous defense of the act’s constitutionality in Shelby County v. Holder, a divided Supreme Court voted 5-4 to strike down Section 4, the core of the act, on the grounds that it is not justified by “current needs.” Substituting its judgment for Congress’s, the court ignored a more than 5,000-page record of “current needs” that Congress relied on in 2006 when if reauthorized, with overwhelming support, the act’s challenged provisions.

The Supreme Court’s race impatience

ILLUSTRATION: Matt Mahurin

As Tuesday’s decision gutting the heart of the Voting Rights Act made clear, it is June and a slim conservative majority of Supreme Court justices is again impatient with race.

Judging from President Barack Obama’s initial tepid, nonracial reaction, the first black president — whose reelection hinged in part on an expanded minority voting base — is impatient with the Supreme Court, race or both. And Congress is, well, stuck on Congress.

What we’re seeing from the Roberts Court’s recent race decisions, however, is an aggressive colorblindness, cloaked in hubris and federalism – or states’ rights. Working to do away with race at all costs, this colorblindness is administered through the court’s growing demands that any civil rights remedy be tailored with a narrowness approaching oblivion.

Gutting the landmark civil rights legislation

 

The Supreme Court’s Shelby County v. Holder decision on Tuesday essentially cast aside the key component of the nation’s most important civil rights legislation.

The five “conservative” justices castigated Congress for putting too much emphasis on history by failing to update the “coverage formula” in Section 4 of the landmark Voting Rights Act of 1965.

Section 4 specifies which states and local jurisdictions must “pre-clear” with the Justice Department or the Washington district court all changes in election laws – anything from adding voter ID regulations to redistricting. Areas now subject to this federal oversight have had a substantial history of voter discrimination.

A victory for gays and for families

I didn’t expect to cry on my wedding day. But there I was last September, in my Cape Cod backyard, trussed up in suit and tie, waiting for my soon-to-be husband at our makeshift altar, and the tears came. I wish I could say they were two camera-ready teardrops, wending their way down my left cheek. But no. In reality, I got a monsoon — I was a sobbing, near-hyperventilating mess. The importance of what we were doing had just hit me: We were pledging, in public symbol and sacred promise, to build and sustain a life together.

When I began to read what Justice Anthony Kennedy wrote for the court’s majority, I realized that he agreed. In eviscerating DOMA, he also wrote a stirring defense of the very institution that many conservatives believe is threatened by gay marriage: the American family.

The announcement of the Supreme Court’s decision comes three days before Kennedy’s 50th wedding anniversary (he married fellow Sacramento, California, native Mary Davis on June 29, 1963), and what’s striking in his writing is the high regard that Kennedy has for what couples, gay and straight, assemble. He writes of same-sex couples’ “pride in themselves and their union.” He repeatedly deploys the word “dignity.” He argues that DOMA “places same-sex couples in an unstable position of being in a second-tier marriage.” And more than that, he writes, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” (His choice of the word “demeans” echoes his diction in Lawrence v. Texas, the 2003 case in which Kennedy, again writing for the majority, struck down a Texas sodomy law and argued that this kind of invasive legislation “demeans” gay people.)

Big wins for the freedom to marry. Now let’s finish the job.

Reggie Stanley (R) and Rocky Galloway embrace as they are married in Washington.

Nearly two years after we were pronounced married by New York state in front of our family and friends, my husband and I are finally married in the eyes of the federal government.

Okay, it took an order from the Supreme Court. But Cheng and I are celebrating anyway.

Like so many other same-sex couples wed under the shadow of the so-called Defense of Marriage Act, we had been treated as second-class citizens — forced to pay extra to file our taxes and get spousal health coverage. We were denied access to federal programs such as Social Security or immigration green cards — among the many federal protections automatically afforded other married couples who are not gay.

Marriage equality: Not for states to decide

ILLUSTRATION: Matt Mahurin

The Supreme Court Wednesday struck down Section 3 of the federal Defense of Marriage Act — which denied federal benefits to married gays and lesbians—as discriminatory and a violation of equal protection.

The court, however, declined to address the question raised by another important case, Hollingsworth v. Perry, about whether the right to marriage extended to gays and lesbians nationwide.

So, are supporters of marriage equality better off without the Supreme Court declaring that gay and lesbian couples have a constitutional right to marry?

The real IRS scandal

The office for the Internal Revenue Service near Times Square in New York May 16, 2011.  REUTERS/Chip East

We just had five congressional hearings about the Internal Revenue Service, full of sound and fury, but, we now know, signifying nothing.

Despite all the hoopla and headlines about IRS personnel targeting conservative tax-exempt organizations, there is no real scandal here. IRS staffers acted not only legally but, given their impossible task, quite rationally.

Grassley aims for GOP political spin on federal judiciary

Senator Charles Grassley (R-Iowa) at a Senate Judiciary Committee hearing on Capitol Hill in Washington, July 14, 2009. REUTERS/Joshua Roberts

The U.S. Court of Appeals for the D.C. Circuit’s stunning decision this week to strike down a National Labor Relations Board rule requiring employers to post signs reminding workers of their right to organize, is a clear indication of why this D.C. court has become an ideological battleground.

Senate Republicans, in particular, are going to great lengths to preserve their partisan advantage on a court widely regarded as second to the Supreme Court in importance.

Can Tsarnaev be ruled an ‘enemy combatant’?

Three major legal questions are now swirling around the Boston bombing suspect, Dzhokhar Tsarnaev.  Since his dramatic capture Friday night, the public debate has already begun muddling these issues.

An overarching question is whether the United States can legally treat Tsarnaev as an enemy combatant, and if not, whether his rights as a civilian defendant can be altered because he is accused of terrorism. President Barack Obama has taken a measured, but concerning, approach on this.

The first question depends on the law – so there is a right or wrong answer. If the Justice Department tried to classify Tsarnaev as an enemy combatant without the proper legal authority, for example, the courts would reject that attempt and completely reclassify him.

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