For those concerned about civil rights, this week's Supreme Court rulings provided an emotional roller coaster. On Tuesday, the Court dealt a crippling blow to the Voting Rights Act, jeopardizing nearly 50 years of progress on voting discrimination. Then, just one day later, the Court overturned part of the indefensible Defense of Marriage Act (DOMA), paving the way for married same-sex couples to receive federal benefits, rights, and responsibilities.
How should we reconcile the thrill of DOMA's demise with the Court's tragic decision to gut the Voting Rights Act? This week is a reminder that, while our country has made incredible progress since 1996 -- when Congress passed DOMA, we must also safeguard those gains we have made since 1965 -- when Congress passed the Voting Rights Act.
The Court's decision to strike down Section 3 of DOMA in the ACLU's case United States v. Windsor represents a huge step forward for LGBT equality -- and (we hope) foreshadows even more progress in the years to come. Justice Antonin Scalia, playing the part of Nostradamus, has even given proponents of the freedom to marry a legal roadmap: He predicted that the same reasoning used to overturn Section 3 as a violation of equal protection could be used against state laws denying the freedom to marry. Scalia wrote in his dissent, using strikethrough, no less:
DOMA'sThis state law's principal effect is to identify a subset of state-sanctioned marriagesconstitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMAthis state law contrives to deprive some couples married under the laws of their Stateenjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities."
Legal challenges to state laws prohibiting same-sex couples to marry are already underway, and I am sure that legal advocates appreciate Scalia's drafting their arguments for them.
What does the Court's decision regarding the Voting Rights Act portend? The Court refrained from striking down the actual "preclearance" requirement, which forces jurisdictions with a history of voting discrimination to get federal approval before altering their election laws. Yet, by eliminating the coverage formula -- which determines which jurisdictions must obtain preclearance -- the Court has in effect undone the preclearance requirement.
The Court put the fate of minority voters in Congress's hands, inviting lawmakers to draw a new formula if they want to continue to stave off discriminatory voting practices.
But what can we expect from Congress? In 2006, when Congress reauthorized the Voting Rights Act, it did so with broad bipartisan support. The reauthorization passed the House and Senate with votes of 390-33 and 98-0, respectively, and was signed by then-President George W. Bush. That, however, was before the right to vote became the politicized and polarizing issue it is today.
And, even if Congress somehow managed to overcome gridlock and craft a new formula, it is unclear that it would stand up in court. The law that the Supreme Court undercut this week was based on nine months of testimony and more than 15,000 pages of evidence. If that wasn't sufficient to convince a majority of justices, what will?
Indeed, in oral arguments, several justices questioned whether the Voting Rights Act remains necessary. Scalia, for example, referred to the law as a "racial entitlement" that continues to win support because lawmakers fear appearing prejudiced. As he explained, "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."
This makes me wonder whether the Court cynically killed the Voting Rights Act without having the decency to tell us. This is the tragedy and the challenge. As recent events in Texas demonstrate -- the state's Attorney General has pledged to implement a regressive voter identification law in the wake of the Supreme Court's ruling, the same law that the Department of Justice denied preclearance to last year -- oversight remains essential to defend decades of progress on voting rights and prevent racial and language discrimination from infecting our voting system.
So, while we celebrate yesterday's decision on DOMA, we must not forget that much work remains for all who remain committed to liberty and justice for all.
What should we do? We should call on the Department of Justice to aggressively challenge voter suppression efforts through legal action, in an attempt to counteract the loss of preclearance. We should support those organizations that work to protect the right to vote. And, most importantly, we should champion local changes that make it easier for all of us to vote.