The Independent

Supreme Wisdom

Gay marriage
Gay marriage
Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex and/or gender identity. Legal recognition of same-sex marriage or the possibility to perform a same-sex marriage is sometimes referred to as marriage equality or equal marriage, particularly by supporters. | Photo: | Gay Marriage, Homosexual, Rights, Religion, Prop 8, Lesbian, Gay,

America's Only Adults Provide Proper Guidance

Four cases aligned to put America's least appreciated branch of government in a thorny position: the Supreme Court had a chance to strike down (or affirm) laws codifying the illegality of gay marriage, the legality of affirmative action and protections against segregation.

Fisher v. University of Texas, Shelby County, AL v. Holder, Hollingsworth v. Perry, and U.S. v. Windsor are cases striking at the heart of American society and our notions of equality for all citizens. Improperly, the Court is characterized as Conservatives vs. Liberals. The political framing of the Court's activity serves only to diminish the impartiality of the justices; the landmark ruling in the case of National Federation of Independent Business v. Sebelius should have served notice of the lack of political partiality exercised by the Court ' the majority opinion was written by Chief Justice John Roberts. The Chief Justice has been identified as a conservative justice prior to the ruling but following the ruling fell out of favor with political conservatives. The four cases cited above directly engage the issues of race and sexual orientation in America.
Race in America
Shelby and Fisher are referendums on the progress of racial equity. Shelby questions the necessity for federal clearance to change voting laws in areas with a history of inequality (such as Alabama). Fisher challenges the use of race as a factor for college admissions. These issues are central in resolving the process of full integration of minorities into the elective, educational and economic processes of the United States.

The Court is the only place that Shelby could be impartially considered. Congress has reauthorized the federal clearance sections multiple times and by increasing majorities, the latest being in 2006. Members of Congress serve at the pleasure of their constituents as does the President. A politician could make a rational argument that the South has changed since 1965 (the year President Johnson signed the Voting Rights Act into law). That same politician would lose in November. SuperPACs and soundbite politics create a political environment where high-minded debate is verboten. Sadly, the Court is the only logical place to examine race in America.

The Court ruled that section 4(b) of the Voting Rights Act was unconstitutional because the data used to create the federal clearance mechanism was over 40 years old. Chief Justice Roberts wrote that the formula used to justify federal clearance "...is based on 40 year old facts having no logical relationship to the present day." The Chief Justice, along with Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony Kennedy took the empirical view that the South has changed. The metrics used to justify this rationale are voter rolls. Today African-Americans have registered in record numbers; the Court invalidated section 4(b) but also included language preserving section 5 ' the section dealing with federal clearance. The mechanism for determining if a jurisdiction needs federal clearance was rightly discarded. The Court wisely refrained from fully cutting down the law, rather it carefully pruned the Voting Rights Act. Now it's the job of Congress to come up with a better formula for applying section 5.

Gay marriage
Gay marriage

Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex and/or gender identity. Legal recognition of same-sex marriage or the possibility to perform a same-sex marriage is sometimes referred to as marriage equality or equal marriage, particularly by supporters. | Photo: | Gay Marriage, Homosexual, Rights, Religion, Prop 8, Lesbian, Gay,

Fisher presents a similar racial conundrum. Thanks to Regents of the University of California v. Bakke and Grutter v. Bollinger affirmative action has been upheld by the Court. These cases and the precedent set was directly challenged by Fisher. In reading the oral arguments it appeared that the petitioner had little ground to stand on ' Justices Ruth Bader Ginsburg and Sonia Sotomayor directly challenged the petitioner's fitness to bring suit as it appeared that the petitioner would not have been admitted to UT regardless of race. The Court ruled that the lower courts had not applied the standard of review that affirmative action cases required ' specifically the strict scrutiny applied in Bakke and Grutter. What's more interesting is the 7-1 margin (Justice Elena Kagan recused herself). Conservative and liberal justices agreed that the case had not been correctly adjudicated in the lower courts. Affirmative action and it's possible end would have to be fought on a proper battlefield, not the first available one.

Shelby and Fisher represent great thoughtfulness and a lack of political correctness ' an adherence to the principles of the Constitution and common sense. Similar to the cacophony of opinions on America's progress in race relations there is no short supply of opinions, informed or otherwise, on gay marriage.

Gay Marriage
Hollingsworth and Windsor are the two freighters navigating the turbulent sea of gay marriage in America. There is an avalanche of Americans publicly declaring their support of gay marriage and sensing this avalanche was coming, religious activists in the middle of the last decade pushed through laws in many states aimed at preventing the union of same sex couples. As of this writing, 14 states have legalized marriage. Hollingsworth and Windsor strike at the heart of those laws.

California's dance with legalizing gay marriage is a slow waltz. Conservatives and Evangelical Christians routinely characterize the Golden State as a modern Sodom and Gomorrah. The victory of Proposition 8 is a touchstone; a point of pride that even in the bastion of immorality there is enough sense to not allow such horrific sinful behavior to be made law. There is a common theme with Hollingsworth and Windsor: the government of California and the federal government declined to defend the statutes at any judicial level. The decision in Hollingsworth is notable in two instances: the majority was formed by Chief Justice Roberts, Justices Scalia, Ginsburg, Breyer and Kagan. Justice Scalia, similar to the Chief Justice, is a strict interpreter of the Constitution, so to join with three liberal justices is noteworthy. The Court's ruling had nothing to do with a referendum on the Constitutionality of gay marriage ' rather the Court ruled that a group of citizens do not have the ability to represent a governmental entity, the district court's ruling was vacated and the case was sent back to the 9th Circuit with instructions to dismiss.

Windsor is similar to Hollingsworth; the federal government declined to defend the Defense of Marriage Act (DOMA) against the petitioner's challenge. The case hinged on the idea that DOMA creates two classes of marriages. The Court's ruling nullifies DOMA; the rights of due process guaranteed by the 5th Amendment are sustained regardless of the sexual orientation of a couple. The dissenting justices wrote that the case had no standing because the petitioner and respondent's positions were in agreement and the injury had been rectified. In the dissents there was no condemnation of gay marriage or gay culture; the dissenting justices were concerned that Windsor was an improper case to issue such a ruling. The majority opinion never mentioned the following point: if left up to Congress and the President to repeal DOMA, it's possible America would have waited in the same fashion that America did following Brown v. Board of Education until the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Progress Through the Judiciary
The four prominent cases cited above provide the clearest evidence that societal change is often initiated by those insulated from the adverse reactions to that change. The Court's rulings have inspired caterwauling by liberals and conservatives; both political groups have voiced disenchantment with the justices who supposedly share the similar strain of political ideology. The Warren Court reversed field on the "separate but equal" doctrine and many Courts during the 20th century greatly expanded the rights of the accused. The Roberts Court handles all cases with political disinterest yet releases decisions with dramatic effect. The greatest justices are ramparts of impartiality and Constitutionalism, the best example would be Chief Justice John Marshall. The Roberts Court appears to share Chief Justice Marshall's boldness; it is impossible to see this current court making such purely political rulings in cases like Dred Scott and Plessy v. Ferguson. The Supreme Court once again keeps the experts on their toes and lives up to their purpose ' to be arbiters, not politicians.

There has been immediate fallout from the Court, the most visible activity displaying the real effect these rulings have on people took place June 28 in San Francisco, CA: After the 9th Circuit dissolved its stay of the district court's order, California's Attorney General, Kamala Harris, married plaintiffs Kristin Perry and Sandra Stier.

Comment on Disqus

Comment on Facebook

Updated May 10, 2017 12:30 PM EDT | More details

AND Magazine AND MAGAZINE

©2017 AND Magazine, LLC
5 Columbus Circle, 8th Floor
New York, New York 10019 USA

This material may not be published, broadcast, rewritten, or redistributed without express written permission from AND Magazine corporate offices. All rights reserved.