It was my theory as a civil rights lawyer, and still is, that while Justice Kennedy may be conservative in many types of cases before him, that he's actually slightly liberal when it comes to core civil rights. Not progressively liberal, mind you, but still liberal. He believes in radical equality. And by that, I mean, he believes that government should not discriminate in ANY of it's decision-making, particularly as to any matter he views as a non-issue, such as one's race, color, or now LGBT status, which he thinks are or should be treated as irrelevant to any personnel or governmental policy decision. The result is what appears to many outside commentators this week as judicial schizophrenia, but his approach is actually very considered and logical. He may be tough on facts, but once he feels one's legal burden has been met, a strong ally for civil rights and for the legal framework applied in these pivotal cases, but a firm believer that remedies must be appropriate and narrowly tailored.
Let's look at this week's cases.
AFFIRMATIVE ACTION
In the affirmative action case, Justice Kennedy and the majority applied this philosophy to require the University to make a better showing that it's affirmative action plan met the heightened legal standard applied in determining whether such an extraordinary remedy is appropriate and appropriately tailored. Remember, however, that his initial approach is radical equality. As such, he is not a big fan of affirmative action, which plays favorites based on race, without a very strong showing that the remedy is still justified by the current or relevant historically recent conduct and narrowly tailored to that end. The law of affirmative action has historically developed that even where there is no immediate act of discrimination that certain institutions, such as colleges and universities, which engaged in long-term widespread and sometimes very open and ugly discrimination in admissions, are allowed to create plans which boost minority admission numbers closer to community demographics in order to encourage student interaction in a real world environment which includes substantial minority representation. While Justice Kennedy, who authored the majority opinion, does not personally favor remedies not resulting from specific conduct, here he overlooked that philosophy and voted to preserve this type of historic social engineering use of what he otherwise considers an extraordinary remedy - affirmative action. He reminded the lower court of the proper standards to consider, and added some new additional tweaks in the amount and type of proof the University would have to submit to obtain approval of it's social engineering type of affirmative action plan, but a larger picture would suggest that we should be grateful he did not axe this remedy all together. It suggests he is mindful of the struggle, and long distance left to travel, to ensure true equality in society. In the end, however, he believes even where affirmative action may be justified by current facts, the plan must be narrowly tailored to pass Constitutional muster.
VOTING RIGHTS ACT
In the Voting Rights Act case, most commentators have been puzzled by the Court's schizophrenia when contrasted with the rulings in the two gay rights cases. But if we again consider J. Kennedy's base approach in these cases, it becomes much easier to see why these cases yielded different results. Like the affirmative action case, but unlike the two gay rights cases, the VRA case was another case involving remedies to discrimination, rather than discrimination on current facts before the Court. Yes, I realize that Shelby County has a bad history and was challenging DOJ intervention on a current policy it proposed to implement that it had not been allowed yet to do so, and I would and do personally differ in my opinion as to whether Shelby County actually deserved assistance here, but from the standpoint of the court, this was a case about whether the statutory remedies were appropriately and narrowly tailored to the actual conduct of the states and localities listed in §4. As the majority chose to frame and determine the case, any issue of Shelby County's specific conduct must wait until after first deciding the basic statutory validity question of whether Congress had appropriately included it and the other states and localities listed in §4 of the Act.
The 15th Amendment of the Constitution declares the right of US citizens to vote shall not be denied on account of race or color. Section 2 of the 15th Amendment exclusively gives Congress the authority to enforce this decree by "appropriate" legislation. Despite overwhelming votes by Congress to extend the Voting Rights Act as recently as 2008, the Court apparently did not believe the voting rights legislation passed by Congress, and particularly, the methods used to determine what state and local governments had committed sufficient racial discrimination recently and repetitively enough to warrant their inclusion in §4, such that they would be required to obtain pre-clearance for new voter rules under §5, was, in fact, "appropriate." It ordered Congress to fix that.
In a prior opinion on the Voting Rights Act, the Court had expressed it's concern that a list from 1965 of bad actors who should be legally required to submit new voting rules to DOJ and obtain pre-clearance before their enactment might need revision in light of policy, social, organizational management, and demographic changes which had occurred in those jurisdictions and affected government entities since the Act was originally passed. Congress took the Voting Rights Act up again in 2008, conducted some cursory hearings, issued a new 1,500 page report of findings, evidence and testimony from hearings, but failed to make any substantial changes to the 1965 Congress' list. As a lawyer, I can tell you from personal experience ignoring a Court's order can land you in a world of trouble. And that's what happened here. Again, I might differ in my personal opinion as to the amount of deference due Congress's determination, but this Court and J. Kennedy found that Congress had basically given short-shrift to the whole concept of conducting actual fact-finding and had instead just cobbled together language from old reports, and prior work, instead of doing much new investigation into what was actually occurring on the ground in each state/locale identified by §4 of the Act. This angered conservatives on the Court who ordered the initial review. But the Court, in it's ruling, did not vacate the extraordinary remedy of pre-clearance established in §5 of the Act, instead it simply invalidated the list of states & local governments set forth in §4. It required Congress to do a better, and much more thorough, job to determine where there are truly still racial problems in voting based on a proper detailed factual investigation into the current situation at hand. Again, this ties back directly to J. Kennedy's insistence that extraordinary remedies dovetail with current facts which justify continuation of those special remedies. The larger news here is that this was probably a compromise to keep the conservative justices from throwing out §5 altogether.
Yes, the decision has drastic immediate consequences. Just this week, since the VRA decision was announced, most of the jurisdictions that had been previously listed in §4 have renewed efforts to implement restrictive voter ID laws, that had in some cases been invalidated under §5 after review by the DOJ or lower federal courts. And creates a very real problem that many of these laws may be in place in the upcoming 2014 or 2016 elections before Congress can act to create a new list or before Courts are able to intervene at the request of affected parties, conduct hearings, and halt any of these laws still determined to be discriminatory in design or impact, before they have done their damage. As a civil rights advocate, this is not a result I agree with or would have let occur given the consequences, but I understand how and why it resulted. You just can't piss off a court by ignoring it's orders, you can't rely on determinations made almost 50 years ago to justify current conduct, and the remedy you do craft, under Justice Kennedy's approach, must be very narrowly tailored to current evidence. Congress can and should move quickly to fix this. Whether Republicans, who will benefit in upcoming elections by excluding minority voters through more restrictive voter laws, will agree to do the right thing instead of the thing solely guided by their motivation to stay in power, is quite another. Perhaps in another era we could trust legislators to put aside partisan interests for the good of the country, but to even expect that to occur in this current era seems like a pipe dream of optimistic balderdash. The only real hope is to forestall some of the consequences by ardent skillful litigation and to try to get Congress, and reluctant Republicans, to do the right thing and create a new list through mass public pressure. I have not lost hope that on an issue so important the parties cannot put aside partisan differences and get the job done, but it will be a struggle, and only by all of us calling constantly will it get done. Where I live, in the South, racial discrimination still happens.
LGBT RIGHTS
This brings us to the two LGBT rights cases.
A small victory for the LGBT community in the Prop 8 case in the Court's determination that the groups trying to stand in the shoes of the State to defend Prop 8, since California's executive officials had refused to defend it, did not have proper standing to do so. The result is that while Prop 8 passed, the ruling of the Appeals court finding it unconstitutional is now reinstated as law. The State of California has no obligation therefore to enforce it, and all marriages between gay and lesbian couples that occurred before it past are again now legal. I would expect California to again start issuing new marriage licenses based on it's policy as existed before Prop 8. Justice Kennedy actually dissented from this ruling, indicating that he would have ruled that the parties defending Prop 8 did have sufficient interest and standing to litigate the case and defend the law. This suggests Justice Kennedy wanted to discuss the merits of the case and may have even been ready to issue a more complete grant of equal protection rights under the 5th and 14th Amendments to gay and lesbian couples than actually occurred in the DOMA case. Reading the tea leaves, but we will never know for sure, or at least until the next big case on this issue is taken up by the Supreme Court.
The DOMA ruling is a victory for the LGBT community. The Court ruled that the Federal Government cannot discriminate, as a matter of equal protection, against gays and lesbians on matters of marriage, but only if those marriages are "lawful" under State law. My reading of the case suggests that the Court intended this to be the case in any determination made by the Federal Government, including as to provision of other benefits and consequences of spousal statutes. The Court did not define the protected class to include LGBT citizens broadly, as it could have, but instead chose only to protect those LGBT citizens lawfully married by their State as their State, and each State, defines marriage. The level of protection afforded under the equal protection amendment for any class protected under the equal rights clause of the 5th or 14th Amendments can vary widely, from government merely having a rational basis for it's new law as being sufficient to sustain it's legality, to modified mid-level standards of substantial government's interest, all the way to requiring the government to have a compelling state interest narrowly tailored to justify any discrimination the law might otherwise create. As the majority found that DOMA did not even meet the rational basis test, it had no reason to go further and more specifically define the litigation burdens on future parties. This is bound to create much confusion to both Courts and parties in future litigation brought to challenge laws in states which have not yet approved gay marriage, or establish entitlement to equal treatment in provision of Federal benefits by gay couples not located in a pro-gay marriage state.
The Supreme Court did not come right out and say that LGBT persons are protected as a class, as they have done in other equal rights cases involving race, national origin, gender, etc., although the majority's citation to it's litany of equal protection clause rulings may be intended to do so implicitly. While the majority included favorable language to those fighting on the front lines of this historic rights battle, it couched it's central ruling in the cloak of a State's right type argument - that the definition of marriage was exclusively a province of state governments (think 10th Amendment-ish) - and that the Federal Government was without Constitutional authority to set aside the state's determination without a better reason than was offered in this case. I don't know about you, but this does not allay my concerns or provide me with a warm and fuzzy feeling about their ruling. It seems to allow States to make their own choice on the issue, even if that is against allowing gay marriage, as it is their exclusive province.
This certainly will make the path of those fighting for equality in red states much more difficult to conquer. This appears to be a concession by Justice Kennedy to the States rights concerns of the Court's conservatives. Unlike the Voting Rights Act case which appeared to be driven by the Court's displeasure with Congress more than political concerns, in the DOMA case, the ruling was made with an eye towards the current political and social landscape. I guess one could say that is actually yet another similarity or consistency with the VRA ruling - lawmakers must be guided by current facts and social conditions. But the truth is more likely that since the issue brought to the Court only directly affect the Federal Government's policy and the State of New York and other states similarly situated which allow gay marriage, there was room for the minority to bargain over any additional breadth of the opinion, particularly as it might affect other states not directly impacted by it's rulings.
The question thus framed is will this new fledging Constitutional equal protection right for LGBT persons be sufficient to overcome a red states restrictive laws outlawing gay marriage and/or defining traditional marriage as between one man and one woman? Based on this opinion, the answer is that a state may very well be able to overcome this limited rational basis oriented LGBT protection if it has a good, legitimate, non-discriminatory, and valid reason for differentiating between gay and straight couples. But defense of traditional marriage, moral objections, religious objections, are not valid concerns that any governmental entity can lawfully consider under the language of the Court's DOMA opinion. And it does not appear, as of yet, that conservative legislators in these states have come up with any reasons yet which fall outside this box. In considering the issue, it seems they would be hard pressed to do so. But if a state is able to fashion some other legitimate reason for differentiation between LGBT and straight couples beyond moral or religious objections, who knows?
I should note here that procreation was offered and rejected as a reason in this case. States allow lots of people who are unable to have kids, or just choose to not to have kids, all the time. Not a valid reason. Something more than a reason not equally applied to straight couples will be required by the Court, but they have only specified it must be "legitimate" and "rational."
We are not being afforded full equal protection as is afforded on account of race, national origin or even gender, the LGBT community is being offered something less, again. And frankly, as an LGBT citizen, and one very knowledgeable in civil rights litigation, standards and burdens of proof, this angers me a bit. Race requires a compelling state interest before government will be allowed to do something which will cause discrimination, LGBT status only requires a rational basis to justify governmental discrimination at present, if LGBT status is directly protected at all, without the approval of state that allows gay marriage. And that is problematic in the long run, because if the standard remains there, it has been my experience in litigating thousands of civil rights cases, that it is much easier for a state to offer a reason that passes the bottom level equal protection rational scrutiny test. Even weak reasons have sometimes been found sufficient, if otherwise legitimate and not motivated by bias. The rational basis test is really not much protection at all in the historical context of equal protection cases and the standards that have developed. However, it is some protection, in that it requires more than hate, homophobia, or religious objections, to overcome.
The plaintiffs in the DOMA case did not challenge Section 2 of that Act, which means that it is still presently the law, and valid law as enacted by Congress, to "allow(s) States to refuse to recognize same-sex marriages performed under the laws of other States." (Opinion, p.2) The plaintiffs challenged Section 3 of DOMA which attempted to redefine marriage for Federal law purposes only as only between one man and one woman. DOMA does not block states from recognizing gay marriage. We can expect to see a slew of new legislation offered in the 38 states that do not currently allow it.
The decision is largely a cop-out, an avoidance of the real issue at hand, whether LGBT citizens are entitled to full and equal Constitutional protection. Instead the majority opinion leaves the questions to the States and resolves the issue by saying merely that the Federal government cannot undermine the dignity and new status afforded to LGBT citizens under each State's own domestic relations laws. Consider the Court's own language:
"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975). The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens." (Opinion, pp. 16-17)
"What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. ... The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other." (Opinion, p.19, emphasis added)
"For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledg- ment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving under- standing of the meaning of equality." (Opinion, p.20)
The State of New York confers this right and dignity. But the opinion does not say directly the US Constitution does. And that's an important detail to leave out. Or question to leave unresolved.
The majority addresses that question more directly in Section IV, the last section of it's opinion, but only creates even more confusion by constantly intertwining two previously distinct concepts: equal protection of minorities under the equal protection clause, and equal protection of a class of citizens protected by choice of a state on a matter solely within the choice of the state to protect or not protect, which is more in the nature of a State's rights issue under 10th Amendment, rather than how an equal rights issue under the 5th Amendment is normally discussed. See for yourself:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. (Opinion, pp.20-21). ... DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. (Opinion, p.22) ... And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. (Opinion, pp.22-23, emphasis added).
So is the Court saying that without being made "lawful" by the authority of the State, there would be no disadvantage, stigma, or separate status? In considering your answer, notice the underlined text.
The Court then addressed the effects of forcing a State to discriminate in marriages against it's will:
"This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." (Opinion, p.23, emphasis added)
Is the majority saying that it's sodomy opinion is the extent of this new Constitutional protection? It is unlikely the Court is saying that "all" "moral and sexual choices" by any citizen are always protected, consider child molestation, rape or incest for example, but does this language make persecution because of LGBT class status Constitutionally off limits? The majority could be more clear and less cryptic.
Suddenly, there is a moment of clarity in the majority's opinion, as if right on cue:
"The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." (Opinion, p.25, emphasis added)
Again, look specifically at the underlined text, what is protected is not LGBT status, but a "lawful" same-sex marriage. As opposed to an "unlawful" one? As in an anti-gay rights red state?
Yes.
The Court clearly is not extending equal rights to LGBT citizens as a protected class. Instead, the Court bailed on this historic moment and intentionally chose to only protect a class of "lawful marriages." A class solely defined by State law. Defined differently by each State. As the Court made manifestly clear in it's conclusion:
"The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. 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. This opinion and its holding are confined to those lawful marriages." (Opinion, pp.25-26, emphasis added).
The last sentence seals the fate. "Lawful marriages" are protected. Nothing more. No class status recognition for LGBT status under the equal protection clauses of the 5th or 14th Amendments of the Constitution. It is highly unusual for courts to define a protected class in an equal protection clause case this way. Normally, the court would define the class by the prohibited factor - race, color, national origin, sex - rather than by a State's legislative designation. If this is a new LGBT right, it is a lesser one, and intentionally so, when compared to normal equal rights decisions in other cases decided by the Court. This Supreme Court has defined a purely conditional right subject to State majority rule.
In the context of equal rights, that is actually no right at all. (Unless your State says otherwise).
Perhaps LGBT advocates can spin the decision to argue that the Supreme Court has removed all of the objections specified in this case from consideration or use by any State in enacting it's marriage laws. But with the underlined text highlighted above, you can see how one could argue, very legitimately, that the Court purposefully intended for this to be a choice made by each State and it's own citizens, and perhaps even if they did choose to consider invalid moral and religious objections.
This is the battleground.
As an LGBT citizen, I want full equality under the law and I will not be satisfied with anything less. You should not be either. Whether you are gay or straight, Government should not discriminate.
I hope my theory regarding Justice Kennedy is correct when the Supreme Court addresses these larger LGBT issues and that this peculiar opinion resulted merely from the issue not being squarely before the Court. I once met and talked with Justice Kennedy at a legal function. I did not get the impression that he would choose to discriminate against me. I don't think he could guess that I was LGBT, or more importantly, that it mattered to him.
And that, gives me hope.
With the Court's new LGBT rights opinions, the possibilities for confusion are endless; the possibilities for justice are not.
Can you tell which of these children are LGBT?
