…or, Why joining the Shelby dissent and the Windsor majority doesn’t make you a hypocrite.
What a week for the U.S. Supreme Court. The justices handed down a pair of much debated and long-awaited decisions, whose controversial ramifications will be felt for years to come.
In my professional role (as well as from a personal interest), I tend to perk up whenever SCOTUS drops these kind of bombshells, as do my colleagues at the College of Professional Studies’ Doctor of Law & Policy Program—where we talk through some of the nuances of these most recent rulings. In fact, when our students first arrive, we assign them the 2003 Supreme Court case of Lawrence v. Texas. As you’ll see below, that case helped pave the way for the historic Windsor decision.
First, on Monday, the Court issued Fisher v. Texas (Texas keeps springing up in these lawsuits!), a relatively narrow ruling about affirmative action in higher education. And then real fireworks took place on Tuesday and Wednesday.
On Tuesday, in Shelby County v. Holder, the Court struck down a key portion of the 1965 Voting Rights Act (VRA), a law protecting the right to vote for people who had been victims of historic discrimination, especially in the South. The Court held, essentially, that “the South had changed,” and that Congress did not take this into account when it updated the VRA in 2006. Justice Roberts cleverly suggested that the opinion is limited in scope: Congress could always update its formula to determine which areas of the country must get federal permission to change their voting rules. Few observers, myself included, think today’s Congress, incapable of passing a Farm Bill, can agree on a new formula for “covered” states.
And on Wednesday, in U.S. v. Windsor, the court made history when it struck down Section 3 of the 1996 Defense of Marriage Act (DOMA). This portion of the act defined, for federal purposes, that marriage could only be defined as a relationship between a man and a woman (even if the state of residence, such as Massachusetts, considers a same-sex couple married).
Now you may wonder, is Justice Ginsburg—and, for that matter, Justices Breyer, Kagan and Sotomayor—hypocritical for dissenting in Shelby and joining the majority in Windsor? Or is Justice Kennedy the only consistent one because he is the lone Justice to strike down portions of the VRA and DOMA? Does Justice Ginsburg merely strike down congressionally enacted laws she disagrees with and defer to Congress when she likes the law? This is an attractive observation at first glance, but untrue.
First, why does Justice Ginsburg trust Congress when it comes to the Voting Rights Act? Even defenders of this statute acknowledge that its burdensome requirements in Section 5 limit state sovereignty. The answer lies in the (remarkably short) text of the 15th Amendment to the Constitution. It states that:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
Justices Scalia and Thomas like to emphasize the importance of the Constitutional text. It’s hard to read the 15th Amendment placing authority on voting rights anywhere but Congress.
Regarding DOMA, why did Justice Ginsburg join the opinion striking down the federal definition of marriage? Why doesn’t she trust Congress here? Purpose matters, and in one of the most powerful moments of Windsor’s Supreme Court oral argument, Justice Elena Kagan (who spoke to members of our Doctor of Law & Policy Program at the Supreme Court in December), asked about what motivated Congress to pass DOMA in 1996. Kagan read from the House Report: “Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.”
Justice Ginsburg joined the majority opinion in Lawrence v. Texas, a 2003 case holding that moral approval alone could not justify the criminalization of private, consensual sex between two individuals of the same sex. In DOMA, the court found “strong evidence” of the law being based on disapproval of same-sex couples. Unlike the VRA, which sought to protect a group of Americans who had historically been marginalized, DOMA sought to demean, stigmatize and single out a class of persons. Striking down DOMA and upholding VRA both stand for the protection of historically persecuted minorities. So feel free to use that line during politically charged dinner parties this week if someone calls Justice Ginsburg, (or Breyer, Kagan or Sotomayor) inconsistent about acts of Congress.