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Pearl Korn

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A Historic Week in Which the Supreme Court Rose to the Heights and Descended to the Depths

Posted: 07/02/2013 4:34 pm

By any measure, last week's Supreme Court decisions were epic and historic, with much of the nation waiting in breathless anticipation for the nine justices to issue rulings on the ironically-named "Defense of Marriage Act" ("DOMA") -- certainly one of the low-points of Bill Clinton's presidency -- and California's Proposition 8. Additionally, in an equally stunning ruling, key provisions were eliminated from the long-cherished and hard-fought Voting Rights Act of 1965 ("VRA"), which had been fully reauthorized in 2006. These decisions will have a resounding effect on our nation for years -- if not generations - to come.

At the same time in the Senate, we witnessed a rare display of bipartisanship with the passing of a sweeping immigration reform bill by a vote of 68-32. This bill now moves to the House, where major reworking by the GOP "leadership" is expected in order to satisfy the Tea Party loons in their midst. A major topic of discussion will likely be the already unseemly "border surge" amendment that was tacked on to appease Senate Republicans. This provision calls for, among other things, the completion of a 700-mile fence along the border with Mexico and the deployment of up to 20,000 more border agents, creating a huge militarized zone right in our own back yard at a cost of $46 billion dollars.

The pathway to citizenship continues to instill misguided feelings of animosity among Conservatives, who consider this bill a form of "amnesty" for undocumented immigrants. They don't seem to care that 11 million people would finally be brought out of those very dark shadows of illegality and into the world of honest-living, tax-paying members of the American community. It is high time this appalling chapter in our history ended. Immigrants drive so much of the American economy and deserve the respect and opportunity to become a part of the American fabric that celebrates diversity.

The Senate bill is complex, with many twists and turns that do not make it an easy passage to citizenship by any means. It will take up to thirteen years for undocumented immigrants to achieve citizenship, and one wonders how many will never achieve that dream, either moving elsewhere, returning home or dying of old age along the way. This far-from-perfect bill creates a long, expensive and complicated legalization process that needs more clarity. And who knows what the House will come up with to further gum up the works? If anything, at least the Senate version offers some protection of immigrants' rights and a road map to citizenship moving forward -- two features that must be kept in tact if this bill is to have any chance of working as law.

Meanwhile, the Supreme Court found DOMA unconstitutional in a 5-4 decision, opening the door for same sex couples to marry and receive federal benefits, among them Social Security and Veterans benefits, which are of particular concern in many same sex unions. Only 13 states and the District of Columbia recognize such unions, so it remains to be seen how those other 37 states will deal with this issue. Apparently, there will continue to be different rules from state to state as to who would qualify for such benefits and protections. In some states, federal benefits are based on where the marriage took place, while in others benefits are hinged on residency. What will happen when a marriage takes place in one state and then the couple moves to another state? These inconsistencies must be addressed, and we can only hope that one day we finally become one nation on this issue.

Of course, the Supreme Court did not make this ruling the law of the land, which would have simplified the entire matter. States recognizing same-sex unions will have to set the parameters for the application of benefits that others can follow. Same-sex couples share the same concerns and values for their communities, children and families as heterosexual couples and families do, so, frankly, these decisions should be no-brainers. But this issue is not over for the right wing camp, and they are undoubtedly plotting new ways to complicate this matter at the state level, looking to incite their increasingly narrow base to pressure state legislatures to treat marriage equality the same abusive way they do women's reproductive health rights now. How long ago 2008 seems, when Hillary and Barack did not support gay marriage -- but this is a new world, and both are now supporters. The Supreme Court also struck down California's Proposition 8 ban on same-sex marriage, so same-sex couples can now marry once again in California, beginning in about three weeks.

The underlying theme of this session -- at least as far as marriage was concerned -- appeared to be "Equal protection under the law." Unfortunately, where the Justices offered equality with one hand, it snatched it away with the other in seriously threatening one of our most precious rights, something that has helped define and shape our democracy since 1965, when the Voting Rights Act became the jewel of the Civil Rights movement. Reauthorized in '06 by a rare, bi-partisan 98-0 vote in the Senate, the Supreme Court saw fit to gut key provisions of this law, despite recent pushes in many states to disenfranchise voters. According to Representative Keith Ellison (D - MN), this year alone 30 states have introduced 80 different restrictive voting laws that target minorities, low-income people, the elderly and students.

The Supreme Court action decimated Section 5 of the VRA, which required state and local governments with a prior history of racial discrimination to obtain "... permission from the Department of Justice for any changes in voting rules or procedures." The Supreme Court also ruled that Section 4 of the VRA is unconstitutional, saying that Congress needed to update the provision, but so far had not done so, "forcing" the Court to declare it unconstitutional. Section 4 establishes the rules for states and municipalities to follow to ensure that no racial discrimination in voting procedures takes place, and without Section 4, Section 5 becomes impossible to enforce. More oversight than ever is needed, and, according to The Riverdale Review, Representative Eliot Engel (D- NY) "... is calling on his colleagues to come together and pass legislation which addresses the Supreme Court's issues with the VRA, and returns the still needed oversight powers to the Federal Government." The VRA was among the most successful laws ever passed by Congress, and made us a better nation -- it must be preserved.

Congress needs to act immediately to counter this decision. If not, more voter suppression will be on the way in more and more states. Last year alone, the VRA helped prevent discrimination nationwide on such issues as state voter ID's, redistricting and cutting back on early voting. Those voters formerly protected by this law will now be vulnerable to discriminatory practices, finding it more difficult to cast their vote. In Texas, for example, a student ID is unacceptable when voting, but -- surprise, surprise with a yahoo like Rick Perry as governor -- a gun permit is allowed. Who could make this stuff up?

This is an activist, reactionary Supreme Court with a majority that is unafraid to flaunt its conservative bias, as exemplified by another business-friendly ruling in this session that forces arbitration and other limits on class action lawsuits. Justice Anthony Kennedy is often the swing vote, and he is unpredictable at best in his voting, while emerging as a major power in the Court. Sadly, there is nothing in place to recall errant Justices who do not serve the people's interests. Instead, we are stuck with them for decades. Perhaps a Supreme Court Justice Recall Amendment to the Constitution is in order? But a more immediate possibility is that between now and 2016, two to three justices are expected to retire -- a prospect worthy of serious consideration by the president.

-- with Jonathan Stone

 
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