Supremely Equal Under the Law

Greetings from D.C., where we await decisions on voting rights and marriage equality with our hearts in our throats. Like a strong majority of Americans, I believe we are all equal under the law -- now I hope the Supreme Court agrees: any day now we will learn the fates of our voting rights and marriage rights.


As we mark the 50th anniversary of Medgar Evers' assassination by the KKK, millions of Americans still find untenable obstacles to the civic sacrament of voting for which Mr. Evers, the one and only Dr. Martin Luther King, Jr., and so many sacrificed. With Justice Scalia's odious and ominous description of the Voting Rights Act as "a persistent racial entitlement," many are concerned that the VRA is doomed.

What could happen?

1. Voting Rights Act (VRA) Section 5, which requires covered states to submit any changes in voting practices to the Justice Department or a Washington court for approval, is upheld as it has been upheld four times under the reasoning that our Constitution's Fourteenth and Fifteenth Amendments expressly assign Congress broad power to enforce voting rights, and that those enforcements are necessary. SCOTUS could do what dozens of voting rights and civil rights organizations have implored in friends of the court ("amicus curiae") briefs and affirm the Court of Appeals decision to uphold Section 5 of the Voting Rights Act.

VRA victory means Americans keep a layer of protection not only for African American, Latino, and Native American voters but -- as Professor Gary May has pointed out -- for voters of all races and classes.

2. VRA section 5 is struck down. I'm an optimist till the facts prove me otherwise -- but most analysts say SCOTUS will use Shelby County [Alabama] vs Holder to gut voting rights laws and voter protections from a coming wave of voter ID laws, early voting cancellations, and other restrictions. There will be far less scrutiny of thousands of decisions each year about redrawing district lines, moving or closing polling places, changing voting hours or imposing voter identification requirements in areas that have a history of disenfranchising minority voters.

I am trepidatious that voting rights for all may well hinge on whether justices believe the discrimination that was widespread in the 1960s still exists and whether states in the South continue to be the worst offenders.

VRA opponents want to signal a declaration that America is "beyond race," which anyone with a casual observation of the 2012 racial dog whistles othering Obama by stirring up nativist resentment against the president of the United States knows to be patently absurd.

We are all equal under the Constitution -- but not yet under the laws and pernicious practices still evident today.


Even opponents join proponents in the knowledge that marriage equality will eventually be the law of the land -- but when?

This LGBT Pride month its fate will turn with Supreme Court consideration of two landmark same-sex marriage cases. The Prop 8 challenge filed by the American Foundation for Equal Rights on behalf of two California couples who are represented by Ted Olson and David Boies is Hollingsworth v. Perry and the federal Defense of Marriage Act, or DOMA, case is called United States v. Windsor.

Several things could happen:

1. SCOTUS reaches the merits of Proposition 8's constitutionality and throws it out, technically affirming the Ninth Circuit decision invalidating California's measure. Possible but unlikely is a SCOTUS decision holding that all state bans on same-sex marriage are unconstitutional or that states with civil union and domestic partnership laws must require full recognition for marriage rights for same-sex couples -- legalizing marriage equality in Colorado, Illinois, Minnesota, Nevada, New Jersey, and Oregon and of course restoring it here in California.

2. SCOTUS dismisses the case, leaving the Ninth Circuit's ruling that Prop 8 is unconstitutional as the final decision. This is called a "DIG" (as in "Dismissed as Improvidently Granted") if 5 or more justices agree that the petition for certiorari (Supreme Court review) should never have been granted. DIGs are rare but Justices Kennedy, Breyer and Sotomayor all raised the possibility during oral arguments in March. Again, the Ninth Circuit ruling on Prop 8 stands.

3. SCOTUS holds that Prop 8 backers lacked standing under federal law to appeal the U.S. District Court's decision. This would vacate the Ninth Circuit opinion, leaving U.S. District Court Judge Vaughn Walker's ruling that Prop 8 is unconstitutional as the final, binding decision. Prop 8 is held unconstitutional in this scenario, but parties hostile to marriage equality might seek to litigate over whether the District Court ruling applies statewide.

4. SCOTUS reverses the Ninth Circuit, upholding Proposition 8 as valid under the U.S. Constitution's equal protection guarantees. This loss for marriage equality would send us immediately to the ballot to repeal Proposition 8 by the voters.

5. DOMA is repealed, opening up federal benefits to same sex couple in states where marriage equality is legal and granting relief to same sex spouses denied equal protection under the law in discrimination ranging from taxes to immigration.

6. DOMA is upheld (least likely but still a scenario) and we retain the status quo -- returning to the ballot box to push candidates who will repeal it.


Not since the 2000 recount Bush v. Gore case have the fates of millions been so tied to the views of five people. So we know that any judicial ruling will have profound personal and political consequence.

Should equality be deferred, we have but one choice: as Leader Nancy Pelosi urges us in the wake of any defeat: "Don't agonize, organize!" We will have to organize no matter the outcome -- but hopefully we'll do so with a spring in our step, knowing that our civil rights movement is strong as ever and our march to equality for all Americans goes forward from the inconceivable to the inevitable.