Deeply Conservative

 I understand that the gay rights community is cheering at its dual victories in the Supreme Court in United States v. Windsor  and Hollingsworth v. Perry.  But memories are also so short.  One might ask – how could this be the same Court that earlier narrowed the right of a state university to seek to enroll a diverse student body in Fisher v. University of Texas, removed the core of the Voting Rights Act in Shelby County v. Holder and limited employer liability for workplace harassment in Vance v. Ball State?

The answer is simple. Both Windsor and Perry are narrow, conservative decisions.   In both cases, the Court took the narrowest route available to rule in favor of the gay rights claim without fully vindicating the gay rights position.

Let’s start with Windsor.  Before one state had made it possible for same-sex couples to marry, in a fit of hysteria and prejudice, Congress passed the Defense of Marriage Act by an overwhelming majority in 1996.  Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other states. Section 3 defines the term “marriage” and “spouse” under federal law so that those provisions would not apply to married, same-sex couples under more than 1,000 federal statutes, regulations or directives.

Only Section 3 was attacked in Windsor as being unconstitutional as applied to Edith Windsor and Thea Spyer, who were legally married in Canada in 2007.  When Spyer died in 2009, Windsor could not qualify for the federal marital tax exemption.  DOMA cost Spyer $353,053 in estate taxes.  She challenged DOMA, arguing that it violated the guarantee of equal protection as applied to the federal government through the Fifth Amendment.  By the year 2009, when she brought this suit, the state of New York was willing to recognize her marriage consummated in Canada.  And before this case was decided, New York amended its marriage laws to allow a same-sex couple to marry in New York.

Edith Windsor did not ask the Court to rule that a state must allow her to marry someone of the same sex. Nor did she argue that New York was required to recognize a marriage consummated in Canada.  She merely argued that the federal government, out of outright prejudice, could not refuse to recognize her marriage. The prejudice in 1996 was so brazen that the House Report quite comfortably stated that DOMA expressed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

The courts, however, did not rush to assist individuals like Edith Windsor who sought to take advantage of the benefits of marriage.  No, the Court waited until New York and 11 other states decided to extend the benefits of marriage to same-sex couples.  It does not rule that same-sex couples anywhere in the United States are entitled to the benefits now enjoyed by Edith Windsor.  It merely rules that DOMA is invalid to the extent that it has 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.  This opinion and its holding are confined to those lawful marriages.”

Although the Court purported to decide the case on equality grounds, the logic of its equality ruling was that equal treatment was only appropriate if the state had made the decision to extend equality to same-sex couples.  Same-sex couples who face the worst discrimination because they live in states that do not even recognize their relationships receive no relief.  They are permanent second-class citizens rather than merely second-class for federal purposes (but first-class for state purposes).

Hence, the Court’s decision in Windsor reflects the very least the Court could have done if it chose to reach the merits.  But, even so, its decision only garnered the votes of five members of the Court.  The other four conclude that it is permissible for the federal government to accord second-class status to same-sex couples as long as we live in a society in which we allow more than 30 states to fail to recognize their relationship at all.

Perry reflects another narrow, conservative way to handle these issues.  The procedural background in Perry is unusual.  In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution.  For six months, same-sex marriages occurred in California.  Then, the voters passed Proposition 8, which eliminated same-sex marriage in California.  In response, the Perry plaintiffs filed suit in federal court, arguing that Proposition 8 was unconstitutional on federal constitutional grounds.  The district court judge ruled in their favor but the decision was stayed pending appeals.  The state of California chose not to appeal the district court decision but the official proponents of the initiative were allowed to defend it in the Ninth Circuit.  In a very narrow ruling, the Ninth Circuit affirmed the district court, concluding that it was unconstitutional for the state to “withdraw[] a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.”  If affirmed by the Supreme Court, the Ninth Circuit’s decision gave the Court the opportunity to overturn Proposition 8 without concluding that all states must recognize same-sex marriage.  California happened to be the only state that had allowed same-sex marriage and then withdrew it.

While conceivably appealing to a Court looking for a narrow decision path, I never could swallow the Ninth Circuit’s rationale.  Is it truly better to live in Alabama where the prospects for marriage equality through the regular legislative process are virtually zero than to live in California where the courts, executive branch and probably even the voters are likely to favor marriage equality?

No member of the Court sought to defend the Ninth Circuit’s logic.  Instead, both the majority and dissenting opinions focused entirely on the narrow issue of “standing.”  Writing for the majority, Chief Justice Roberts said: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.  We decline to do so for the first time here.”  The Court vacated the judgment of the Ninth Circuit (because it also did not have standing to hear the case) and returned it to the district court (where it had previously been held unconstitutional).

Technically, the Perry decision only affects the San Francisco district court area that heard the initial case.  But, given the politics of California, it is likely this decision will soon extend to the entire state.

So what do we have in terms of victories?  Marriage has won.  A new group of people, same-sex couples, can seek to join the institution of marriage in California. And those who live in the thirteen jurisdictions that currently allow same-sex marriage have one more reason to get married – the availability of over 1,000 federal benefits (and, in some cases, responsibilities).

More fundamentally, I do hope the Court’s decisions make gay men, lesbians and bisexuals feel like more welcome and full members of society.  I hope they attain more dignity even in states, like my own, that do not permit same-sex marriages.

But let us not forget those decisions were narrow and conservative and are part of a larger legal landscape in which this Court attacks affirmative action, voting rights, and workplace equality.  These decisions do make sense in that context.

Learning disability and the DSM-5

In the matter of a few days, the Court refused to defer to Congress (Voting Rights Case), refused to defer to the states (Texas Affirmative Action Case) and refused to defer to an administrative agency (Title VII Case).   These decisions are neither conservative nor federalist.  They are merely judicially active.

And each case was sneaky in the way it avoided deference.

In the Voting Rights case, the Court could not conclude that Congress did not have the authority to respond to racial injustice in voting. The Fifteenth Amendment’s language precluded that option.  Section 2 of the Fifteenth Amendment expressly gives Congress to the power to “enforce” the rule that the vote “shall not be denied or abridged … on account of race.”  The conservative majority could only second-guess how Congress implemented that power, not whether it had it at all.

In the Texas affirmative action case, the Court chose not to overrule recent precedent that racial diversity is a compelling state interest in higher education.  Yes, it could have overruled that recent ruling (from Grutter) but that would have caused Justice Kennedy to make a mockery of his prior decisions upholding the importance of stare decisis –a bedrock constitutional principle. So, instead, the Court questioned how Texas implemented that compelling state interest, creating a seemingly impossible test in which it has to prove a negative – that no race-neutral mechanism could achieve racial diversity.

In the Title VII case, we are talking about enforcement of a statute, not the Constitution.  Congress delegated authority to the EEOC to create the rules about how to attain equal opportunity at the workplace.  The Court could not question the EEOC’s delegated authority. So, instead, the Court chose to micro-manage its substantive rule by replacing its understanding of what it means to be a supervisor with that of the EEOC.

There is only one word that explains this Trifecta – Activism.

Congress, states, and administrative agencies no longer have any presumptive authority.  Rather than hide behind words like the Court “reluctantly” overturns these decisions, the Court should be more clear.

This Court welcomes the use of its power to replace democratically created policies with those of its own.  Let’s just not pretend otherwise.