Warning: The U.S. Supreme Court's recent decisions about civil rights and equal treatment pose a risk of severe whiplash.
On the final day of the court's term last week, the justices embraced a strong vision of equality as they decided United States v. Windsor, striking down the federal Defense of Marriage Act (DOMA), which prohibited the U.S. government from recognizing same-sex couples' marriages.
Earlier in the week, though, the court offered a different response to an equality question when it evaluated the University of Texas' consideration of race in its undergraduate admissions process. Although the decision did not put an end to race-based affirmative action, as many advocates had feared, the court took pains to stress that schools' affirmative action plans will be subjected to the strictest, most skeptical form of judicial scrutiny.
Even harsher consequences for the future of equal treatment in the United States will flow from three other rulings issued in the last week of the court's term. In one case, Shelby County v. Holder, the court struck down a central provision of the 1965 Voting Rights Act, which prohibits states and local governments from fostering race discrimination in the voting process; in two more (Vance v. Ball State University and University of Texas S.W. Medical Center v. Nassar), it limited the protection offered by employment discrimination laws. These rulings will make it harder for people to challenge discrimination at the polls and at work, yet a majority of the court indicated that its narrowing of equality protections was the only right result.
What can we make of this seemingly contradictory set of decisions that embraces some forms of equality but rejects others, especially when it seems to be an about-face from the court's previous practice? After all, in the 1980s, the court derided a gay man's privacy rights claim as "at best facetious" when he tried to challenge Georgia's sodomy law but also upheld the Voting Rights Act and broadened the reach of employment discrimination laws.
Taken together, the recent rulings signal a severely constrained and deeply troubling understanding of the Constitution's equal protection guarantee. DOMA was doomed not because a majority of the justices are particularly sympathetic to the discrimination suffered by gay people -- though they might well be -- but because the statute so openly and deliberately singled out a group of people for a legal burden.
DOMA's open hostility meant that it was a "discrimination of an unusual character," as Justice Anthony Kennedy wrote, a type of discrimination that remains, appropriately, unacceptable to most members of the Supreme Court. For many decades now, the court's equal protection rulings have rejected this sort of open aggression, including in gay rights cases, on the grounds that "a bare congressional desire to harm a politically unpopular group cannot" justify discrimination.
With this equality doctrine in force, we can expect that the remaining anti-gay marriage laws will eventually fall, as DOMA did. Courts will likely strike down many of them. Legislators might increasingly take the initiative to authorize marriage equality too, as they already have in some states, realizing that defending same-sex couples' exclusion from marriage is a losing and expensive constitutional battle.
In the voting rights context, however, the discriminatory laws at issue do not name their targets as directly as DOMA did. As a result, the future does not look so hopeful in front of a court that appears to be troubled primarily by explicit forms of discrimination. No legislature today would dare impose openly race- or ethnicity-based voting restrictions in the way DOMA imposed restrictions on gay people. But numerous state legislatures have enacted other measures, like voter ID laws, that are cloaked in neutral language but have the effect of burdening racial and ethnic minority communities. And, following the Voting Rights Act ruling, many states will have an easier time putting these laws in place.
A similar theme emerged from last week's employment cases. One of the decisions makes it harder for employees to prove that they have been retaliated against for complaining about discrimination. The other makes it harder for employees to win discrimination suits when they have been harassed by someone who has power over them in the workplace but does not fit the Supreme Court's newly narrowed view of who counts as a "supervisor." In both, the dissenting justices accused the court of ignoring workplace realities.
Unquestionably, these rulings will enable more discrimination against women and members of racial minorities at work and in elections. Yet because none of these cases presented discrimination as blatantly as DOMA did, the justices could more easily disclaim responsibility for the anti-equality consequences of their rulings.
In short, the court's equality decisions from the last week of its term seem to run simultaneously in two different directions. Explicitly hostile laws will be stopped in their tracks -- perhaps because of an underlying sense that their overt discrimination is embarrassing to the nation. But where hostility plays out behind the scenes, as in a neutral-sounding voting restriction that has a discriminatory effect, or in an employment action that keeps its discriminatory motive well hidden, inequality remains alive and well. The cure? More judicial attention to what 21st-century discrimination really looks like. With that, in the coming years, these subtle but damaging forms of inequality may also, eventually, be brought to a full stop.
This is an abbreviated version of a post that first appeared on AlJazeera.com.
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