Making Sense of Recent Supreme Court Cases

The U.S. Supreme Court recently issued a series of opinions regarding some hot-button political issues.

Questions of constitutional law are quite complex and are not always easily explained.  Take, for example, the Court’s ruling last year on the Affordable Care Act.  Although in the end the Court upheld the Act, in doing so it further narrowed the scope of the Commerce Clause of the U.S. Constitution.

If you were reading any news stories or commentary on June 25 and 26 of this year, you might believe that on back-to-back days the Supreme Court gave southern states the green light on re-instituting literacy tests to keep minorities from voting and then turned around and made same-sex marriage legal throughout the United States.  In fact, neither was the case.

So, you ask, what exactly did the Supreme Court say?  Here’s a synopsis on the major opinions recently handed down from the Court:

• Shelby County vs. Holder:  This case involved a challenge to certain sections of the Voting Rights Act of 1965 (the “VRA”).  At issue were Sections 4 and 5 of the VRA which give the Federal government certain oversight into changes in voting laws and redistricting in states that had a history of discriminatory practices.   In other words, the VRA permits Federal oversight of some states’ election and voting law practices and not others.  Section 4 involves a formula for determining which areas are subject to the “preclearance” requirements of Section 5.  The initial formula contained in Section 4 – which was enacted in 1965 as a “temporary measure” – focused on those states and counties in the U.S. that had employed tests and devices for voting and which had a disproportionately lower minority voter turnout in the 1964 elections.  Section 4 was subsequently renewed on multiple occasions, but the formula was never altered. 

The Shelby County vs. Holder case focused on a challenge brought by Shelby County, Alabama to Congress’ 2006 renewal and extension of Section 4.  The Supreme Court struck down the formula set out in Section 4 of the VRA as outdated.  It did not, however, strike down the preclearance requirements of Section 5, nor did it overturn Section 2 of the VRA which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen…to vote on account of race or color.” 

In essence, the Court in the Shelby County case instructed Congress to update the Section 4 formula.  Chief Justice Roberts, writing for the Majority, stated that “…history did not end in 1965.  By the time the [VRA] was reauthorized in 2006, there had been 40 more years of it.  In assessing the current need for a preclearance system that treats States differently from one another today, that history cannot be ignored.  During that time, largely because of the [VRA], voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.  And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current date reflecting current needs.”

• United States vs. Windsor:  At issue in this case was Section 3 of the 1996 Federal Defense of Marriage Act (“DOMA”) that defined “marriage” as excluding same-sex partners for purposes of determining entitlement to Federal benefits afforded to married couples.  A same-sex couple from New York was legally married in Canada in 2007.  The State of New York later amended its laws and recognized as legal same-sex marriages from other jurisdictions.  When one spouse died in 2009, the surviving spouse sought to claim the Federal estate tax exemption for surviving spouses.  Under Section 3 of DOMA, however, she was prevented from doing so and forced to pay $363,053 in estate taxes.  When the IRS refused her request for a refund, the surviving spouse commenced suit contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment of the U.S. Constitution.

The Court, in an opinion written by Justice Kennedy, struck down Section 3 of DOMA as unconstitutional, holding that the definition and regulation of marriage was historically within the authority of the separate states and not the Federal government. 

Much of the commentary on the decision in this case – from both supporters and opponents of DOMA – tends to misconstrue the Supreme Court’s holding.  The Windsor decision did not legalize same-sex marriage throughout the United States; rather, it left the determination as to the definition of “marriage” to the individual states.  In other words, while Minnesota has legalized same-sex marriage, other states are not required to follow suit (and may, if they choose, prohibit it).  Had the Court found that the right to marry was a fundamental constitutional right that cannot be abridged by any government, a different outcome would have resulted from the decision.

Other commentators contend that Windsor in effect made same-sex marriage “the law of the land” because states which do not allow same-sex marriage will now have to recognize marriages from states which do allow it.  Not true.  Section 2 of DOMA, which allows States to refuse to recognize same-sex marriages performed under the laws of other states, was unchallenged and remains in effect. 

• Hollingsworth vs. Perry:  In the second case before the Court involving same-sex marriage, the Court was asked to opine on an issue of standing.  To have “standing” to bring or defend an action in court, a litigant must seek relief fro an injury that affects him in a personal and individual way.  In the Hollingsworth case, a challenge to California’s 2008 ballot initiative known as “Proposition 8” that outlawed same-sex marriage, was not defended by the California Attorney General.  Instead, a group of Proposition 8’s supporters were permitted to defend the constitutionality of the amendment.  In a decision which could be seen as “punting” on the more fundamental question as to whether a state can prohibit same-sex couples from marrying, the Supreme Court, with Chief Justice Roberts again writing for the Majority, held that the ballot initiative’s supporters lacked standing to defend the challenge and remanded the case to be dismissed for lack of jurisdiction.

So, you ask, what do these three cases mean?  Read together and with past decisions in mind, it seems evident that the Roberts Court (1) generally limits Federal intervention into state matters (how else can you explain its striking down portions of the VRA and DOMA on successive days?); and (2) repeatedly strives to avoid involving itself in “political” controversies (i.e., finding a lack of standing in Hollingsworth and last year finding alternative grounds to uphold the Affordable Care Act while at the same time narrowing the scope of the Commerce Clause).  It has, time and again, indicated a desire for political matters to be solved through the electoral process rather than litigation.  In our polarized political climate, however, time will tell as to whether this second objective is at all achievable.