‘The right side of history’

America’s recent rapid acceptance of same-sex unions received a stamp of approval in a historic decision from the U.S. Supreme Court on Wednesday. In a 5-4 ruling that speaks well of the court and the nation, justices struck down the noxious federal Defense of Marriage Act of 1996, proclaiming it unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

Legally married same-sex couples are now entitled to all of the federal benefits that currently are awarded to the partners of heterosexual marriages. That includes tax law and military benefits.

A second Supreme Court decision released Wednesday brought more good news. Justices cleared the way for gay and lesbian marriage to resume in California, saying that lower court rulings overturning a voter-approved ban on same-sex marriage in California could stand.

Neither ruling requires states to adopt same-sex marriage, but some legal experts think the DOMA decision could play a role in future court challenges to statutes outlawing the unions. Partners of the same sex can legally marry in 13 states and the District of Columbia.

While struggles over gay marriage will continue in many states, Americans are clearly embracing their gay and lesbian family members, neighbors and coworkers. They have laid the groundwork for equality by serving their nation and communities well and going about their lives with dignity and integrity.

Though it stopped short of overturning bans on same-sex marriage, the U.S. Supreme Court placed itself on the right side of history.

- From an editorial in the Kansas City Star

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‘All deliberate speed” — that was the gradualist coda the U.S. Supreme Court added in 1955 to its second Brown v. Board of Education ruling after it ended school segregation. In striking down the Defense of Marriage Act without establishing a general constitutional right for gay people to marry, the court did the same thing for same-sex marriage that it once did for segregation: declared a principle without putting it fully into practice. …

Beyond the abstractions, things get complicated quickly. What will happen to same-sex marriages in states that don’t recognize them? And, if same-sex marriages are now entitled to “equal dignity” under the Constitution, can some states continue to deny people of the same sex to wed?

- NOAH FELDMAN, a law professor at Harvard University, writing for Bloomberg View

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The problem faced by opponents of the Defense of Marriage Act is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah).

The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

In a remarkable opinion for the majority, Justice Anthony Kennedy manages to hit on all these theories without really endorsing any of them. After a long peroration on the importance of federalism, he disclaims it as a basis for the opinion — for the reason, I suspect, that if the unconstitutionality of DOMA is based on federalist principles, this case will not be a precedent that can be used to strike down state laws that refuse to recognize same-sex marriage in the future.

He then vaguely invokes both due process and equal protection, without explaining how he overcomes the limits on those doctrines. He does not, for example, declare homosexuals a suspect class, nor does he (or could he) claim that same-sex marriage has roots in history and tradition.

In the end, he seems to hold DOMA unconstitutional because he is convinced that the purpose of the statute was to stigmatize gay people, and indeed there is some precedent for the idea that statutes based on animus are unconstitutional. But he does not provide a very convincing account of the motives of the legislators. Isn’t it possible to oppose same-sex marriage without hating gay people? …

So there is this vague idea that certain constitutional interests standing alone may not invalidate statutes, but may suffice when combined together. Something like this idea might ultimately be the basis of Kennedy’s opinion. Gay people do not form a suspect class, but they almost do. Same-sex marriage is not a longstanding tradition, but same-sex relationships are. Federalism principles are not broken but they are eroded. Put together three almost violations, and you have a real violation.

-ERIC POSNER, a professor at the University of Chicago Law School, writing in Slate

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Ten years ago to the day, dissenting in the case of Lawrence vs. Texas, Justice Antonin Scalia played the role of Cassandra, warning darkly — and at the time, it seemed, hyperbolically — that the ruling invalidating laws against homosexual conduct would lead inexorably to creation of a constitutionally protected right to same-sex marriage.

On Wednesday, dissenting in the case of U.S. vs. Windsor, Chief Justice John Roberts was more Canute than Cassandra. Like the Scandinavian king said to have sought in vain to hold back the tides, the chief justice took pains to emphasize not the potential reach of the majority’s decision to invalidate the Defense of Marriage Act but its actual limits.

“While I disagree with the result ... I think it more important to point out that its analysis leads no further,” Roberts wrote of the majority opinion. “The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the states ... may continue to utilize the traditional definition of marriage.”

Scalia’s response boiled down to: Good luck with that. Nice tides you’ve got there, Chief. …

Let’s hope he’s right, once again. The shoe can’t drop soon enough.

- RUTH MARCUS, Washington Post

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‘Come and walk in my shoes’

The Supreme Court has stuck a dagger into the heart of the Voting Rights Act. Although the court did not deny that voter discrimination still exists, it gutted the most powerful tool this nation has ever had to stop discriminatory voting practices from becoming law. Those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote. I want to say to them, “Come and walk in my shoes.”

I disagree that just because the incidence of voter discrimination is not as “pervasive, widespread or rampant” as it was in 1965 that contemporary problems are not a valid basis for scrutiny. In a democracy, one act of voter discrimination should be too much.

Also, the purpose of the Voting Rights Act is not to increase the number of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. Just hours after the court’s decision was announced, Texas said it would immediately implement the same voter identification law declared illegal by the Justice Department.

-U.S. Rep. JOHN LEWIS, D-Georgia, writing in the Washington Post

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The court didn’t say racism and voting discrimination are things of the past. It merely said that they are not peculiar to the South, or necessarily more prevalent in the South.

Texas and South Carolina wanted to require voters to present a government-issued photo ID when they show up at the polls. Under the Voting Rights Act, they were barred from doing so. Indiana wanted to impose the same rule. It was allowed.

Was this because the requirements were radically different? No. Because there are black people in Indiana? No. Because Hoosiers get driver’s licenses at birth? No.

It’s because what qualifies as racial discrimination in some places does not qualify as racial discrimination in Indiana.

The unequal treatment of states has been the law since 1965. Southern states had shown a virulent determination to keep African-Americans from voting by any means. Special scrutiny made sense then. It doesn’t make much sense now.

- STEVE CHAPMAN, Chicago Tribune

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Which activists in control?

We prefer to think of the Supreme Court as an institution apart from politics and above its struggles. In the wake of this week’s decision gutting the heart of the 1965 Voting Rights Act, its actions must now be viewed through the prism of the conservative movement’s five-decade-long quest for power.

Liberals will still win occasional and sometimes partial victories, as they did Wednesday on same-sex marriage. But on issues directly related to political and economic influence, the court’s conservative majority is operating as a political faction, determined to shape a future in which progressives will find themselves at a disadvantage.

Recall that when conservatives did not have a clear court majority, they railed against “judicial activism.” Now that they have the capacity to impose their will, many of the same conservatives defend extreme acts of judicial activism by claiming they involve legitimate interpretations of the true meaning of the Constitution.

It is an inconsistency that tells us all we need to know. This is not an argument about what the Constitution says. It is a battle for power. And, despite scattered liberal triumphs, it is a battle that conservatives are winning.

E.J. DIONNE JR., Washington Post