Take Affirmative Action (AA). AA is a “judicial remedy” that came out of the civil rights movement in the 1960s. It requires entities guilty of past discrimination to make up for and remedy it by over-compensating the future hiring or placement of the class of discriminated victims. To its supporters, it has been a major tool over the past 50 years to successfully correct many workplace discrimination abuses. To its critics, favoring one race over another – even for corrective or noble purposes – is yet more discrimination on its face, two wrongs making no right. There is also a belief that AA’s objectives of equal treatment and opportunity have been achieved in today’s workplace reality, and so the use of the tool should be ended.
The University of Texas-Austin uses racial mix as a criteria to create a diverse student body, believing that exposure to diverse peoples is a major benefit from a college education. A lower federal court accepted UT’s defense that race was a “last resort” criterion to achieve its diversity aims. Several members of the Supreme Court expressed critical opinions about this use of Affirmative Action, thereby putting higher education “on notice” to proceed with caution. But in the end, they did not overturn the UT practice. They merely sent the case back down to the lower court to re-review “with greater scrutiny and skepticism.” It was a warning shot across the Affirmative Action bow, though not a fatal blow. But clearly AA is now a tool to be used carefully and infrequently. In the end, racial outcomes and fairness will still be the concern. And other examples of AA’s uses will come to the Court once again to be tested.
Another issue from the 1960s was with the Civil Rights Act of 1965. That law made possible an enormous expansion of voter participation from racial minorities. It included a provision that some specified state and local entities that had a long history of racial discrimination in voting would have to have any change in their voting laws pre-cleared by the U.S. Department of Justice (DOJ). Such pre-clearance thereby prevented many continuing attempts to circumvent the free expression of voting rights. Congress has near-unanimously renewed the law on multiple occasions ever since its initial passing.
50 years later, the Court determined that the objective of this provision had been achieved for some of the listed entities. African-Americans now out-vote their White counterparts in many of these jurisdictions, and are now heavily represented in public offices. Meanwhile, there are some wholly new jurisdictions that have their own new set of issues. So the Court said that the old list of named entities was outdated, had to go, and communities should not be held captive interminably to past mistakes of 50 years ago.
It is a reasonable and fair legal conclusion on its face. The Court actually left the pre-clearance feature in place. It just required a new list of discriminating entities based upon current data and conditions across the country. It also left intact the DOJ’s ability to sue entities for current discriminatory practices. So contrary to many editorializers, the Court did not “gut” the Voting Rights Act.
The problem is a logistical one. And it is a serious problem. A revised list of offending entities must come from Congress. And as we know, our current Congress is incapable of passing anything meaningful. So no new list is likely forthcoming, much less imminent. Further, lawsuits filed case-by-case after the fact is long, slow, expensive, and laborious. How the DOJ will react to the flood of new voter ID laws, gerrymandering of voting districts, and other nonsensical actions now racing through various statehouses is hard to predict. The Supreme Court may have ruled. But the jury is still out on whether they will be able to succeed in bringing the law into “current reality.”
Which brings us to the two big decisions around same-sex marriage. One was the California “Prop 8” ballot initiative the voters passed to ban such marriages. The Court had an option to issue a comprehensive ruling about the constitutionality of barring same-sex marriages, but chose not to. Instead, they made a narrow technical ruling that these particular plaintiffs had no legal standing to sue to overturn the lower court ruling that invalidated Prop 8. So it essentially threw out the case and said nothing about whether or not same-sex marriage is universally constitutional. It opted to wait awhile longer for more of American society to collectively move further on this issue. But this issue will be back on their doorstep. In the meantime, California has now joined the growing ranks of states allowing such marriages.
The more interesting ruling was on the Defense of Marriage Act (DOMA) passed by Congress in the 1990s. DOMA prevented federal benefits and guarantees that are given to “married couples” from being extended to legally married same-sex couples. DOMA was struck down for same-sex couples living is a state that legally recognizes their marriage. For this Court, marriage is a marriage is a marriage. It does not come in gradations.
As expected, the conservative Right went apoplectic over this one. The supposedly “conservative-friendly” Court had once again – after approving Obamacare – failed them. Yet the very great irony on this decision is that the ruling was based upon accepting one of the conservatives’ most prized ideals – states’ rights – and then turned that idea on its head. Each state has always been the primary defining authority of who is “married” within its jurisdiction. 13 states now consider same-sex marriages as fully legal. Hence, in acknowledging the primacy of the states on this topic, the Court said the federal government has no right to discriminate (or de facto invalidate or override) such state decisions! For conservatives, it was a classic example of “be careful what you ask for.”
But once again, what was left unanswered? De facto, the Court recognized the legality of same-sex marriage in those states where they have been authorized. They have not yet ruled on whether the remaining states can prohibit such marriages – just as the court was called upon to rule 50 years ago regarding laws banning interracial marriage. Further, states have always had reciprocal agreements among themselves to honor marriages conferred in other states. So when a legally married same-sex couple in Massachusetts moves to North Carolina, where such marriages are now prohibited by a state constitutional amendment hurriedly passed in 2010, will their marriage still be considered legal? Will DOMA then intercede and become valid and still apply to this North Carolina couple? This is the next case coming to the Court.
Stay tuned. None of these Rights and Citizenship issues is done quite yet. The Court is not done quite yet. We are not done quite yet.
©2013 Randy Bell
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