By Mike Andrew
When the nine justices of the US Supreme Court left DC for their summer vacations on June 27, they left behind them a dismal record on civil rights.
Although LGBT rights activists rightly celebrated the court’s decision in USA V. Windsor, striking down the infamous Defense of Marriage Act (DOMA), the justices also gutted the landmark Voting Rights Act of 1965 and suggested new restrictions on affirmative action.
In the DOMA case, the Supreme Court decided by a narrow 5-4 majority that denying Gay and Lesbian couples equal access to federal recognition, rights, and benefits violated their equal protection and due process rights.
In a related case, Hollingsworth v. Perry, they also said that same-sex couples in California could resume marrying, which they were entitled do before voters abolished that right in 2008.
Taken together, these decisions mean that thousands of married gay and lesbian couples have the same rights as opposite-sex spouses in the 13 states, five Native American nations, and the District of Columbia where their marriages are now legal.
The Obama administration immediately issued directives to all federal departments, ordering them to implement across-the-board equality for same-sex spouses.
Within hours of the decision, the Department of Homeland Security halted deportation proceedings against foreign-born same-sex spouses of US citizens. Within days, they were approving Green Card applications.
In contrast to the Supreme Court’s recognition of the marriage rights of gay and lesbian couples, the justices turned their backs on the voting rights of people of color.
In Shelby County v. Holder, the day before it ruled on DOMA, the court struck down Section 4(b) of the Voting Rights Act – the part that required jurisdictions with a significant prior history of racial discrimination to clear any proposed changes in voting regulations with the federal Justice Department.
By getting rid of the so-called “pre-clearance” formula, the court made it much harder for the federal government to protect the voting rights of people of color. The Justice Department can now pursue only individual complaints of discrimination. It can no longer intervene to prevent discriminatory voting regulations from being enacted in the first place.
Just as federal departments moved to get rid of discriminatory provisions once the DOMA decision was announced, state governments covered by Section 4(b) of the Voting Rights Act moved immediately to put new discriminatory laws in place.
Texas led the way, moving within 24 hours to reintroduce laws that had been blocked by the Justice Department last year, including a restrictive voter ID law and a redistricting map that would disenfranchise African American and Latino voters. North Carolina followed suit with what would be the most restrictive voting laws in the country.
The voting rights ruling sparked outrage and opposition, even among those who celebrated the DOMA ruling. Twenty national LGBT organizations issued a joint statement condemning the Supreme Court’s decision in the voting rights case.
On July 25, Attorney General Eric Holder said he would ask a federal court to reinstate pre-clearance requirements in Texas.
In Fisher v. University of Texas, a case dealing with affirmative action programs at UT, the Supreme Court left the university’s affirmative action program in place, but directed a lower court to review it with “strict scrutiny.”
“Strict scrutiny” is the most stringent standard courts use to examine laws for discriminatory effect, and it is the same standard used to review racial exclusion laws. In other words, a majority of the justices tacitly accepted Justice Scalia’s bizarre argument that affirmative action is legally equivalent to racial discrimination.
The final word on this issue will certainly be written in the court of public opinion, and not in the august chambers of the Supreme Court.