Three big decisions by the court this week, which I don't think are being represented very well in the media. I'm not surprised given that constitutional law is nuanced and requires more than a soundbite to describe. And of course, there has to be winners and losers with nothing in between.
Starting with Shelby County v. Holder, in which the Alabama country sued the Attorney General arguing that sections 4 and 5 of the Voting Right Act of 1965 were unconstitutional. Section 5 requires that any State or County which has historically discriminated against minority voters get Federal approval prior to any changes to voting procedures. Section 4 creates a formula to determine which States and Counties fall into that category.
The Court's decision wasn't really as awful as some of my fellow lefties make it seem. The court did not rule Section 5 as unconstitutional, so Federal intervention is still allowed. The court did determine that the formula that Section 4 uses is unconstitutional. However, if Congress were to update the formula, Section 4 would be back in effect. The majority opinion is that the formula, which was last updated in the 1970s, isn't fair under modern circumstances.
I really hate that Section 5 is being rendered impotent until Congress can get their act together. And that might be difficult given how this and the prior Congress behaved. However, the formula really ought to be updated, because I don't if y'all have noticed, but Republican controlled State Houses in the north have been discriminating against minority voters recently. Particularly, in the aftermath of the 2010 elections.
Virtually all the areas which fall under the enforcement of Section 5 are in the South. Which I think is fair, because if you ask me all the horrendous things that state and local governments did are definitely still modern history. That said, I'd like to see the protection extended. The PoC in Cleveland and Detroit could use some backing against the disenfranchisement that the State governments are handing down.
And a final thought on this decision. The Federal Government has no rule in conducting elections in the Constitution. Thus, under the 10th Amendment it is the State governments that should conduct and make law about elections. So, constitutionally The Voting Rights Act of 1965 is a big gray area. The precedent that was set by the court in its ruling on the first challenge the law in 1966 is that Federal intervention was deemed to be okay by the Constitution due to the extreme circumstances. That precedent, which is a big one for this important law, still remains intact.
In Winsor vs. The United States, a widow was denied Federal benefits due to the fact that the marriage was same-sex. She was charged an estate tax on property left to her, which had she been a man she would've not had to pay. Under section 3 of the Defense of Marriage Act (DOMA) the Federal Government does not recognize same-sex marriages. She challenged the law under the 5th amendment.
brief interlude: The 5th and 14th Amendment are pretty much the same. Why are there two of the same amendment? The Bill of Rights applies to the Federal Government. The 14th amendment was needed in the aftermath of the Civil War to prevent Southern States from being able to deny Due Process and all the wonderful rights granted by the 5th Amendment to recently freed slaves. The 14th Amendment did add a guarantee of Federal and State citizenship to all U.S. citizens as well as a spelled out equal-protection clause. Also, some stuff that no longer applies, because everyone who had anything to do the Civil War, more specifically the South's Rebelling, is long dead. And we're back.
The majority ruled that Section 3 of DOMA is unconstitutional. It served no pointed other than to discriminate against homosexuals. The decision also questioned the Federal foraying into marriage which is traditionally left up to the states.
The decision did not strike down DOMA as a whole, but only that particular section. While Section 3 was a biggie, it still leaves the troubling and blatantly unconstitutional Section 2 enforceable. To be clear, section 2 was not challenged in this case, so the Court could not rule on it. Section 2 gives States the right to not recognize the Marriage of a gay couple issued in another state. This is a clear violation of the Full Faith and Credit Clause. Other states have to recognize my Ohio driver's license as valid. A married heterosexual couple could move from Ohio to Iowa and be recognized by their new State government. But a married homosexual couple moving from Iowa to Ohio would not be recognized by their new State government. Also section 2 is violating the 14th Amendment. It really gets needs to get taken to Court.
The final decision, which I will (try to) only write about briefly, is Hollingsworth vs. Perry. At issue was Proposition 8, a gay marriage ban in California passed by voters in 2008, which has been ruled unconstitutional by a District and Circuit court. The Supreme Court did not rule on Prop. 8 or the constitutionality of Gay Marriage Bans. The Court determined that the person making the appeal to the ruling by a District judge did not have standing in the case. The Court ruled that appeal could only be rightly filed by the State of California and since the State chose not to do so the case should've stopped at the district level. The case is to be sent back to the Circuit Court with orders to dismiss it.
The California Supreme Court had ruled that the proponents of the ballot initiative could defend the law in court. It is an interesting dynamic, because Proposition 8 was not passed by the California government, but by a popular vote. So, the thought is that perhaps a citizen should have more say with Prop 8 than a state law passed by traditional means. The U.S Supreme clearly did not agree with their Californian counterparts on this, which I think is good precedent to maintain.
This ruling means that by rule of the District Court Proposition 8 is unconstitutional. However, it does not have a broader effect. California's gay marriage ban is overturned, but my state's ban is still intact. Sometime, probably sooner rather than later, there will be a State that'll fight this issue to the Supreme Court, which would bring about a broader ruling. And my suspicion is that Gay Marriage Bans would be found unconstitutional, at least with the current make up of the Court.
Thanks for reading and please comment
-Michael
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