Opinion

The Great Debate

Same-sex marriage does not threaten birth rates or child-rearing

Several years ago the trial judge presiding over the federal constitutional challenge to California’s Proposition 8 asked Charles J. Cooper, the lead lawyer defending the voter-approved measure, how the recognition of same-sex marriages affected heterosexual couples. Apparently caught by surprise, Cooper, a former assistant attorney general under President Ronald Reagan, candidly answered that he did not know.

Cooper will undoubtedly be better prepared to answer a version of the same question when he appears before the Supreme Court this week. The brief he filed with the court explains that the recognition of same-sex marriage disconnects marriage from procreation and that heterosexuals are less likely to procreate responsibly if gay couples are permitted to marry. The brief cites studies showing that nearly half of all pregnancies in the U.S. are unintended and that children do better when raised by married parents. According to the brief, the institution of marriage was created to address the biological reality that different-sex couples can procreate. In contrast, society does not have a similar interest in allowing same-sex couples to marry because their sexual intimacy does not lead to the creation of children.

There are several reasons why the Supreme Court should reject the effort to defend same-sex marriage bans based on how and when heterosexuals have babies. First, the historical record shows that marriage rates began dropping — and that cohabitation, divorce and out-of-wedlock birth rates began rising — long before Massachusetts in 2004 became the first state to recognize same-sex marriages.

The numbers tell the story. In 1970, unmarried cohabiting couples were raising 197,000 children under the age of 15. By 2000, that figure was up to 1,675,000, an astounding 750 percent increase. Furthermore, during those 30 years, the percentage of births that took place outside of marriage increased from 11 percent to 34 percent, while the number of single-parent households grew by 250 percent. At the same time, the marriage rate dropped by 22 percent and the divorce rate increased by 17 percent.

There are many reasons for these striking changes, including shifting social norms regarding the acceptability of cohabitation, divorce and single parenting. But the important point is that the changes would not have taken place had heterosexuals not decisively embraced greater personal choice and freedom in matters related to intimate and familial relationships. The push for same-sex marriage did not fray the link between marriage and procreation; heterosexuals did that all on their own.

Voting Rights: Scalia v. minority protection

It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.

The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.”

We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.

Who controls Voting Rights?

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

On Wednesday the Supreme Court is set to hear oral arguments in Shelby County v. Holder, challenging the constitutionality of a key part of the Voting Rights Act. But in the wide public debate about this case, we are getting to the point where — as election law scholar Pam Karlan has noted — everything has been said, but not necessarily by everybody.

In addition to this Reuters symposium on “If the Court Strikes Down Section 5,” other symposia, commentaries and op-eds have considered whether the act still serves a vital purpose; whether the court should strike it down; and what should replace it if the court rules that Congress went too far in requiring certain states to continue to get federal permission when making changes in any voting rules until 2031.

Making sure race is considered

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness.

Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.

The strong case for keeping Section 5

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed.

Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.

Focus on new legislative approach

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court invalidates Section 5 of the Voting Rights Act, its defenders may be tempted to tinker at the margins and reconfigure it in a way that could comply with the court’s decision. Given Section 5’s symbolic status and historical importance, some will likely feel a strong pull to “save” it by staying within the essential framework of the current Section 5, while updating various details. But stepping outside the model of Section 5 and embracing a different legislative approach for national voting-rights legislation might be far more effective.

There are now two models for national voting legislation. Section 5 reflects the first template: the race-based, Civil Rights model for protecting the right to vote. This was born out of an earlier era’s historic circumstances, but also reflects the political and constitutional constraints of that era. Enormously effective and easily justified in its early years, Section 5 – and the Civil Rights model it reflects – has also become increasingly limited in its capacity to address many of today’s voting problems.

Delegate the oversight formula

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court strikes the pre-clearance provisions (Section 5) of the Voting Rights Act, it will most likely do so because the statute’s “coverage formula” is untethered from evidence of current discrimination against racial minorities.

The oversight formula determines which states must receive the federal government’s blessing before making any changes to their election laws. It is based on decades-old evidence of discrimination. When Congress in 2006 extended the pre-clearance provisions for another 25 years, legal scholars warned that the extension would be constitutionally vulnerable ‑ unless Congress updated the formula. But politically this was too hot to handle.

The next Voting Rights Act

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

Richard Hasen introduces this symposium by asserting the “smart money is on the [U.S. Supreme] court striking down” Section 5 of the Voting Rights Act. But I disagree with his framing. The next Voting Rights Act needs both Section 5 and additional voting rights protections.

Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political.

Why Section 5 survives

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one.

The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did.

Opting into the Voting Rights Act

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter.

I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters.

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