THE BLOG

The Courts, Civil Rights and What Shouldn't Be Left to Voters

05/13/2015 07:10 pm ET | Updated May 13, 2016

Pretty much every time the federal courts hear a case connected to civil rights, voices on the political right can be counted on to say, "Unelected judges shouldn't decide this! It should be left to the democratic process!"

That's a fundamental misreading of the U.S. Constitution and it forces one to overlook some distinctly unpleasant history. Still, I wish the current U.S. Supreme Court -- the ultimate tribunal for most of these cases -- gave me more confidence in its willingness to do the right thing. Two important civil rights cases are on the court's docket this term, only one of which has gotten much publicity.

The issue currently drawing "leave it to the voters" talk is same-sex marriage. The rabid opponents at the National Organization for Marriage complain of same-sex marriage advocates "seeking to skip the debate and the legislative process entirely, opting rather to redefine marriage through the courts." Justice Antonin Scalia picked up that thread during the court's April hearing on the issue, saying the key question is "who should decide the point," making it clear he didn't think it should be the courts.

But the civil rights of minorities in U.S. society have always depended on the courts. Indeed, the reason we have a constitution -- and particularly the 14th amendment -- is because some rights are so fundamental they cannot be left to popular whim. That amendment, which guarantees that no state can "deny to any person within its jurisdiction the equal protection of the laws," was only passed after the nation fought a bloody and horrific Civil War over the issue of slavery. It was needed because for a century in this nation supposedly dedicated to the idea "that all men are created equal," the democratic process had utterly failed to curb laws that allowed humans to own other humans as property.

For decades, groups like the NAACP tried to achieve such minimal civil rights protections as an end to lynching through the democratic process, but got nowhere. Getting no relief from state legislatures or Congress, civil rights groups rightly turned to the courts and demanded that they enforce the equal protection clause, finally winning a history-changing victory in Brown v. Board of Education. It's hard to imagine a more important function for our courts than to make sure the doors to the American Dream truly remain open to all, regardless of whether a particular group of Americans is popular.

The blunt truth is that the democratic process hasn't been very good at protecting civil rights. As recently as 1964, Californians voted to allow racial discrimination in housing by passing Proposition 14 to repeal the Rumford Fair Housing Act, which had banned such discrimination. It was left to the courts to overturn Prop. 14 and protect against housing discrimination. And only recently have the results of referenda on same-sex marriage turned favorable to the marriage equality side of the argument.

The Supreme Court is about to return to the issue of housing discrimination in a case out of Texas. It could overturn longstanding legal precedent under which fair housing laws apply to policies that result in unjustified discrimination, whether or not that discrimination was intended. What should matter is whether the practical effect of an action is discriminatory. If the court abandons that position, it will badly weaken fair housing protections.

This matters to me, as a child of immigrants who has spent most of my adult life working at an organization devoted to ensuring that those doors of opportunity are indeed open to all, regardless of race, income, zip code or other artificial barriers. We need the courts to act to protect our rights when legislators don't have the courage to do what's right.

But much as I believe in the role of the courts in guaranteeing constitutional protections, I can't say I have a lot of faith in the current Supreme Court to fulfill its responsibility. This is the court, after all, that not long ago cut the heart out of the Voting Rights Act, based on the bizarre logic that because the law had worked, it was no longer needed or even constitutionally permissible. In other disturbing decisions of recent years, the high court has made it harder for victims of workplace discrimination or harassment to sue, and threatened the future of affirmative action programs that are already greatly limited by prior rulings.

I want the doors to equality, opportunity and success to be open to all, regardless of their age, race, ethnicity, gender or sexual orientation. I wish I felt sure that our Supreme Court does as well.