Real Kato Blog: This Week in SCOTUS

It's been a big week at the Supreme Court this week. Here's a round-up for those of you who aren't SCOTUS-watchers.

Shelby County v. Holder: the Voting Rights Act

First was the decision on the Voting Rights Act. The Court effectively gutted a large section of the Voting Rights Act known as the "pre-clearance" section, which required certain states with a history of discrimination to obtain permission from the federal government if they wanted to change their voting procedures. This includes instituting voter-ID laws and re-districting. While the pre-clearance provision technically still exists, the Court said that the calculation of which states the provision applied to was out-of-date and therefore invalid.

The effect is that the pre-clearance requirement can't be applied to any state unless Congress changes how the calculation is done. With Republicans controlling the House and filibustering the Senate... fat chance that a formula targeting red states will have any chance of passing. What I'd like to see is Congress require every state to obtain pre-clearance from the Federal government. That would take the politics out of the which-state-it-applies-to discussion... unfortunately I'm sure that it would run afoul of states' rights advocates (who are also mostly Republicans). So... I think pre-clearance is dead.

That's the bad news. The good news is that Section 2 of the Act still stands, and it prohibits any racial discrimination in voting rights even as a side-effect of some other legislation. So that can still be used as the basis for challenging voter ID laws that suppress minority turnout. You can bet that we'll start seeing a large number of lawsuits based on Section 2, and that one of those cases will eventually make its way to the Supreme Court.

United States v. Windsor: the Defense of Marriage Act

In this decision, the Court struck down the Defense of Marriage Act, stating that the federal government must (for the purposes of a thousand federal laws and regulations) recognize gay marriage in states where such marriages have been legalized. It's a huge victory for gay-rights advocates.

It did not go so far as to define a constitutional right to gay marriage. In part, it was a federalism decision, requiring the federal government to defer to the states in defining what marriage was. But there was a lot of language in the decision about equal protection and due process. And I think there was something very important: the identification of gay marriage laws as a category of laws required to pass "heightened scrutiny" tests.

Let's do a little law 101 here: there are three levels of scrutiny for laws when it comes to equal protection and due process review. The highest level is "strict" scrutiny, which is applied when a law discriminates against a class of people with a history of discrimination, who are readily identifiable as a group with immutable characteristics, and who are a minority or politically powerless. For the most part, this has always meant racial minorities. If a law is subject to strict scrutiny, it must fulfill a crucial government interest, it must be narrowly tailored to meet that interest, and it must be the least restrictive means of meeting the interest. (This is why I think a lot of voter ID laws will eventually be overturned, by the way.)

The second highest is "heightened" or "intermediate" scrutiny. This has historically been applied in cases of sex discrimination (men versus women). It has not historically been used in gay-rights cases, which is why the language in Windsor is important. When a law is subject to heightened scrutiny, it must fulfill an important government interest, and it must be narrowly tailored to meet that interest.

The lowest standard is "rational basis" review, and it only requires that laws be rationally related to some government interest, and not completely illogical or random.

So, the fact that the Court included the requirement for gay-marriage laws to survive heightened scrutiny, coupled with the fact that much of the rationale for striking down DOMA was based on equal protection and due process principles, means that I think we'll see a definitive case on gay rights in the very near future. Someone, somewhere, will sue for the constitutional right to marry their gay partner based on reasoning in DOMA, and the Court will have to take a stand. Hopefully they'll stand on the correct side of history.

Hollingsworth v. Perry: the California Proposition 8 Amendment

As you may recall, Proposition 8 banned gay marriage in California, a little while after it had been legalized in the state. Gay couples sued in district court and won; the judge ruled that taking away the right to gay marriage was an unconstitutional violation of their rights. Gay-marriage opponents appealed the decision, but the California state government declined to fight the decision in court, so a third-party group came into the appeal. The appeal was denied by the Ninth Circuit court, handing a victory to gay marriage supporters.

The Supreme Court overturned the Ninth Circuit decision. Bad news for gay rights? No! They overturned it because the third-party group who made the appeal should never have been allowed to become part of the litigation to begin with. So there should never have been an appeal, and the original district court decision should have stood.

The end result: gay marriage is once again legal in California. The Prop 8 battle is over. It's a technicality, but coupled with the DOMA decision, it's another big win for gay marriage supporters.

So What Now?

It's hard to figure out this Court sometimes. While they often teeter towards states' rights (and that apparently was much of the reasoning in the Holder and Windsor cases), there are cases like the Obamacare decision where they are deferential to Congress. There seems to be a general swing towards supporting gay rights, but not necessarily towards minority or women's rights. They don't seem to be turning more liberal or more conservative; they just seem to be shifting the battlegrounds in which they apply liberal or conservative principles.

Meanwhile, Republicans' heads are spinning. They lambasted the Court in the DOMA decision for not respecting the will of Congress, but then turned around and lambasted the Voting Rights Act as a prime example of federal government overreach. I hope it's clear to everyone by now that when a Republican criticizes "big government", that only applies when a law doesn't go their way. Republicans seem to be fine with federal laws so long as they suppress minority rights or impose Christian values on the country.

I think, overall, it's good news for the country. The Voting Rights Act decision is, in the short term, a bad one for us liberals, but the Court is at least partially right that racial issues today are not the same as racial issues in the 1960s (though they do certainly still exist). Hopefully we can do enough within the state legislatures and courts to level the playing field for minority voters... and when that fails, we'll see Section 2 used to right the wrongs.

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