Between the Voting Rights Act and today's marriage decisions, the Supreme Court is sending mixed messages about states' rights, individual rights and federalism.
June 26, 2013

After yesterday's disappointing Voting Rights Act decision, it was refreshing to hear the Supreme Court's decisions striking down DOMA and upholding the District Court ruling on Proposition 8.

Good news first. In yet another 5-4 opinion where Justice Kennedy joined the liberal justices for the majority, the court held that DOMA was unconstitutional. From the ruling:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

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.

On Proposition 8, the court ruled that they had no jurisdiction over the case, and neither did the 9th Circuit Court of Appeals. That means Judge Walker's District Court ruling holds for now and relieved the court of having to make the call on whether Prop 8 violated the equal protection clause. For now, it appears that same-sex marriages in California may resume as soon as the courts finish their paperwork. However, what might happen if Californians collectively lost their minds and elected a conservative Governor and Attorney General who chose to take up the question of whether the original ruling was valid?

In a live broadcast earlier, Tom at SCOTUSblog points out that "sometimes you have to listen to the music and not the individual notes". He also speculated that Californians would actually try to repeal Proposition 8 in order to settle the question going forward. I would like to see the question settled forever and ever, and would be more than willing to put the question of repeal on the ballot in 2014.

All in all, the court will recess with some very mixed messages about rights in this country. On the one hand, the majority is in deep denial when it comes to the Voting Rights Act, but at least one conservative justice appears to understand that marriage is a fundamental human right, too and upheld everyone's right to it, at least in states where it's allowed.

I'm still sorting through both of these rulings, and will update this post with more information as it becomes available. The one clear message about today and yesterday's rulings are that federalism is the frame in which the Supreme Court must be approached, at least until the shape of the court changes. Every significant ruling was careful to preserve states' rights. Even though it worked in the marriage cases, it hurt the Voting Rights Act case, leaving a mixed bag of bitter and sweet for us to chew on.

Update: The Nation took dead aim at the constitutional hypocrisy of the VRA and marriage rulings:

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?

This, more than anything else has me confused. In the DOMA ruling, Justice Kennedy bent over backwards to talk about respecting legislatures and legislative intent, yet there was no respect for the legislative intent of the Voting Rights Act.

Update #2: President Obama calls the Prop 8 ladies after the decision:

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