Thursday, June 27, 2013

You Speak With Forked Tongue

Or you speak out both sides of your month or you are two faced or whatever you want to call being a hypocrite. In yesterday’s dissenting opinion on DOMA the justices contradicted what they said in Monday’s Supreme Court ruling on Voter Rights Act. In an article in the Nation they point out how hypocritical they were,
The Supreme Court's Constitutional Hypocrisy
Ari Berman on June 26, 2013

In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”

Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”

Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?

It doesn’t seem like the Chief Justice has a very sound grasp of the Constitution when it comes to the VRA. Richard Posner, an esteemed conservative legal theorist at the University of Chicago and a judge on the US Court of Appeals for the Seventh Circuit, wrote in Slate that Roberts struck down Section 4 of the VRA for violating the “fundamental principle of equal sovereignty,” which, as Posner writes “is a principle of constitutional law of which I had never heard—for the excellent reason that…there is no such principle…The opinion rests on air.” The extensive record developed by Congress, most recently in 2006, Posner writes, “should have been the end of this case.”
It is not only “The Nation” who noticed these two faced decisions, but also Rachel Maddow on MSNBC,
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.

Assuming I'd missed something important, I asked the Constitutional Accountability Center's David Gans to help me out. He told me:

    "Your question highlights a fundamental flaw in Chief Justice Roberts' majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts' opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the 'letter and spirit of the Constitution,' but he never really explained why.

    "His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg's powerful dissent demonstrates, the Court's opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment."
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people's representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It's been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.
Hmmm…. It seems that some of the conservative judges have selected vision see only the parts of the Constitution they want to see and when. Do you remember the confirmation hearings in the Senate the Republicans made such a stink about “Activist” judges and they wanted judges who followed the Constitution? If you have been following the court’s decisions you will notice a trend in interpolating the Constitution more towards “state’s rights” and limiting the rights of people.

This is the court that,
Allowed corporations to influence elections
Made it hard to sue your employer for discrimination
Took away the federal government power to insure fair elections

The Crooks and Liars blog said this about the decision.
Pretty straightforward, but it leaves some open questions yet to be resolved. Justice Kennedy was careful to write the majority opinion from a federalist stance, leaving the states free to ban or approve gay marriages while requiring the federal government to rewrite most of the rules around how marriage is defined for purposes of federal benefits.
We are now left with a quagmire of state laws. What will happen if one spouse of a same-sex couple that is vacationing in a state that has a constitutional amendment banning marriage equality becomes ill, will the other spouse be able to visit them in the hospital? What happens when a legally married couple who resides in a state with marriage equality move to a state without equality? What happens if a legally married same-sex couple has a child and one spouse runs off to another state that doesn’t recognize their marriage? These are all real questions that will arise over time.

Think about this from University of Missouri School of Law;
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:     "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
Do you think today’s court would have ruled the way they did in 1967? Now change it from “interracial” to “same-sex” do you think that today’s court would follow the logic of the 1967?

Many trans-people do not see the implications of yesterday’s ruling on the trans-community. But consider a trans-woman who has had surgery, living in her birth state and all of her documentation has been changed to her true gender. Marries a man and they then move to a state that bans same-sex marriages and only recognizes the gender assigned at birth. The husband dies and the wife tries to collect insurance and the insurance company claims that they were never legally married. How do you think this Supreme Court that is steeped in “state’s rights” would rule? Would they follow the Loving court decision or would they say that the law in the state that they now live in will prevail?

1 comment:

  1. Diana,
    Your points are well taken. It will take, I am afraid, a set of cases similiar to your hypotheticals to force the courts to acknowledge the inconsistency of the situation they have created. So have argued that the ruling on Prop 8 was what it was because the court did not want to take the bigger plunge and declare bans on same sex marriage illegal since they felt the proper course is through the legislature and that the country was not quite ready for it.

    Equality will come some day just not soon enough. We need to keep fighting until it does.