With the flurry of recent decisions on gay marriage and voting rights, the U.S. Supreme Court has delighted many, infuriated others, and confused most of us. Why were the decisions relatively progressive on gay marriage and conservative, if not oblivious, on voting rights? The judges themselves appeared deeply divided in all cases, jettisoning the usual courtesy of judges for harsh language, and in some cases, a seemingly unprecedented rudeness. What should we citizens make of all this?
Much of the confusion has been glossed over with the Supreme Court's historic but narrow decision on this issue. Yet, for as much celebration as there has been by activists who feel they won a great victory, they must also understand, there will be a shift to the states in the next round of the Culture War. This will not be the last time that issues emanating from DOMA, the Defense of Marriage Act, will be debated at the Supreme Court. The cultural differences between states and regions make new litigation a sure bet along with in-your-face debate.
Pundits on all both sides of the gay marriage debate are rushing to shape the coming debates and political environment in the states. The talk shows, the news programs, and the press are full of predictions for future outcomes in their favor. As reported on The Huffington Post, National Organization For Marriage president Brian Brown spoke to George Stephanopoulos on ABC's "This Week" echoing Supreme Court Justice Scalia's enraged dissent in the DOMA case. Brown also decried the "horrific precedent" the court had set in allowing gay marriage to resume in California, negating Proposition 8 which Brown felt was a legitimate reaction to Governor Brown's "lawlessness."
Chad Griffin, the head of the pro-marriage equality group Human Rights Campaign, seemed to feel that the fight was over. Giving the impression that gay marriage is the law of the land, Griffin said, "... now that DOMA has been erased from the books thanks to that historic decision, those couples across the country who are legally married, their relationships and their families will be recognized as such."
However, only 1/4 of the 50 states legally allow gay marriage and both Brown and Griffin understand the implications of the math. Having chosen to neither mandate nor reject gay marriage as a universal right, there will be an ongoing, and intensified, fight in those states. Further, it's not clear if a couple is married legally in one state that the benefits provided them be portable across state lines. This situation should make for loud, contentious, and barely civil arguments. No doubt, the courts will be involved in negotiating such disputes sooner rather than later.
The question of fairness has already become a political football on both sides. Is it fair that the spouse in a gay marriage can't receive death benefits if their military spouse is killed in action? Is it fair that a parent in a gay marriage is unable to claim social security if the other spouse dies, leaving the children at a loss? For those who are deeply religious, is it fair to force them to go against their religious beliefs and support government programs engaged with gay couples? They ask why their objections as voiced in Proposition 8 was rejected when millions voted for it in a legitimate, California state process.
However the coming fights are framed, it's likely that regional differences that are already obvious will be intensified, adding to add to the current lack of civility. The largest concentration of states that legalized gay marriages are in New England. The Northeast is solidly behind the issue. There are a few states in the Midwest, but Iowa's laws were mandated by the courts and it remains to be seen how voters will respond in the future. In California, gay marriage is now law, again, but contentiously so. The Southeast is devoid of any state with an arrangement allowing gay marriage. The Court has thrown down the gauntlet to the states, saying prove to us that your arrangement represents your citizens and is still fair at a federal level. It's unlikely here in the South, with it's deep religious roots, that this situation will sort itself out anytime soon.
We may be looking at a new North vs. South culture war. Yet, the Supreme Court's decision on the Voting Rights Act asserts that such regional divisions are apparently over. The decision declares that while discrimination still exists, the North-South division concerning voting impediments is no longer valid. Voting rates in Southern States are roughly equal by race. But many disagree including President Obama, who issued this statement, " For nearly 50 years, the Voting Rights Act -- enacted and repeatedly renewed by wide bipartisan majorities in Congress - has helped secure the right to vote for millions of Americans. Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent..."
It should be noted that 90 percent of the current Supreme Court Justices were born outside of the South. With the lack of first-hand experience of the South, the Court's decision was influenced by the personal investment in civil rights, much as the gay marriage vote was influenced by the judges' personal religious views. Further, in the absence of Congress' ability to renegotiate the geographical and demographic application of the Voting Rights Act, it's not surprising that the Supreme Court left determination to individual states. The Court resolved its own differences with incremental decisions that they can revisit, demanding proof that voting regulation is needed.
The Court was even blunter about expecting further litigation on the issue of race-based admissions policies at universities. While not striking down the programs at this time, it was clear that universities were put on notice to prove the educational benefits of these policies. No longer inclined to accept assertion as to the general good of these policies at face value, many of the Justices appear to be chomping at the bit for another such case. They will require that the universities prove race-based diversity policies deserve legal support and that diversity can't be achieved by other means. As Gwen Ifill pointed out on Washington Week, it's fascinating that it's the issue of race that usually triggers these brutal diversity battles on campuses.
What can we take away from the Court's colorful, controversial, and conflicting messages? The country is engaged in culture wars on many fronts, but race and sexual orientation are fueling battles around the country. Changing demographics, regional differences, and religious advocacy are reshaping our social system. The need to "Prove it", whether to the Supreme Court, or to your opposition has become a fundamental element of political action. Whether you tend toward statistics or faith, whether you resonate to the North or the South, you will be bombarded by arguments ranging from mildly intense to off-the-charts. As will the Supreme Court. As will we all, God help us.