Supreme Court makes history — and forgets it, too

The Supreme Court makes history and it forgets history. It grants rights and it takes rights away — all in the same week.

By striking down a federal law that defined marriage as a union between one man and one woman, the court acknowledges equal rights — hallelujah! — for gay Americans.

At the same time, by striking down a key part of the Voting Rights Acts of 1965, the court re-opens the door to potential discrimination against nonwhites and a reprise of unequal treatment.

You could hang both Supreme Court decisions on the same, nonlegal, theory: The world has changed. But the court’s view of a changed world benefits one group — gay Americans — even as it harms another group — black Americans and other minority citizens.

On Wednesday, the Supreme Court made history, by ruling that legally married same-sex couples are entitled to the same rights as all heterosexual spouses. The 5-4 decision voided a provision of the federal Defense of Marriage Act that blocked health and retirement benefits for gay couples that are available to married people.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” wrote Justice Anthony M. Kennedy for the majority. “By seeking to displace this protection and treating those persons as living in marriages less than others, the federal statute is in violation of the Fifth Amendment.”

The court did not rule on a constitutional right to marriage, and leaves in place state laws banning same-sex marriage. But the DOMA decision was greeted with jubilation by gay Americans and their loved ones and celebrated by all who believe in equal rights for all citizens.

Applauding the Supreme Court ruling, President Obama called DOMA “discrimination enshrined in law.” Overturning it, he said, means “the laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.”

That may be increasingly true in the case of gay marriage. But the court’s ruling on the Voting Rights Act of 1965 backtracks on one of the country’s most important pieces of civil rights legislation and creates new opportunity for “discrimination enshrined in law” — all in the name of alleged progress.

The Voting Rights Act required nine states and a dozen cities to get advance permission — or “preclearance” — from the U.S. Justice Department before making any changes to their voting procedures, such as moving a polling place. The purpose was to stop jurisdictions with a history of discrimination from implementing ways to make it more difficult for blacks to vote.

But in a 5-4 decision, the court ruled on Tuesday that the formula used to determine which jurisdictions require advance permission is unconstitutional. In the view of Chief Justice John Roberts, the preclearance requirement is a burden based on old data.

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” wrote Roberts for the majority — which in this case included Kennedy.

Fine, except that a Congress that agrees on nothing of substance is unlikely to agree on a new voting rights formula.

Besides, Roberts appears to have missed the saga of celebrity chef Paula Deen. It suggests that the country has not changed as much as Roberts and his fellow justices might want to believe when it comes to racial attitudes. Barack Obama is president, suggesting one cultural shift; but Deen has used language and insulting references about blacks that her defenders also describe as cultural. If the Deen culture still exists, so does the need for the Voting Rights Act.

The DOMA ruling is more than symbolic. It gives more married Americans access to specific benefits. Opponents may try to fight it, but they face the challenge of a changing world that embraces the idea of equality for gay Americans.

With this ruling, the court’s on the right side of history when it comes to gay rights. But when it comes to voting rights — it’s willing to ignore history.

© 2013, The New York Times

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