WTF, Supreme Court? Gay Marriage Victory, Civil Rights Fail


It’s been a madly inconsistent week for civil rights at the U.S. Supreme Court.

First the good news. As you’re no doubt aware, in U.S. v. Windsor, the Supremes struck down the provision of the Defense of Marriage Act (DOMA) that barred the federal government from recognizing same-sex marriages legally contracted under state law. This means that couples legally married in Massachusetts and a dozen other states now have equal access to some 1,100 federal rights, including tax benefits, hospital visitation, and the ability to sponsor one’s partner for U.S. citizenship.

Still extant, however, is the provision of DOMA that permits states without gay marriage to refuse to recognize such marriages from their sister states. In light of this week’s ruling, it seems unlikely that the remainder of the law would survive a challenge under the Constitution’s Full Faith and Credit Clause, since the 5-judge majority in Windsor basically said there’s no legitimate reason to single out same-sex couples to take away rights already given them by their home state. Now that these couples have federal rights as well, one could argue that unless these rights are portable from state to state, their constitutional “right to travel” has been impaired. (Since the court in recent years has restricted the scope of the once-broad Interstate Commerce Clause, I would make that only a secondary argument.)

A second court challenge may not be needed, since Congress is considering the Respect for Marriage Act to overturn the rest of DOMA. President Obama said he would support this bill in 2011. For the latest on this strategy and how you can help, visit the Freedom to Marry website.

Now the bad news. This same week, the Court handed down three decisions that seriously weakened suspects’ Miranda right against self-incrimination, the 1965 Voting Rights Act, and the Indian Child Welfare Act. More details on each of these cases can be found here, here, and here.

Section 4 of the Voting Rights Act required 9 Southern states with a history of racial discrimination to pre-clear changes to their voting laws with the U.S. Department of Justice or a federal judge. This week, the Court struck down that section of the law, saying it was based on an outdated formula rather than on present-day data about state interference with minorities’ voting rights. How’s this for fresh data: according to ThinkProgress, 6 of those 9 states have already moved ahead with voter ID laws and redistricting plans that had been previously blocked under the VRA. Without neutral federal oversight, redistricting has often been abused to dilute the voting power of people of color, young people, and the poor, by clustering or dispersing them in such a way that they never form a majority voting bloc. Voter ID laws have been shown to have a disparate impact on poor and Hispanic voters, who are less likely to possess the documentation required.

One of my transgender activist friends, who’s been critical of the mainstream LGBT movement’s focus on gay marriage, speculated that the Court made the Windsor decision more palatable to Tea Party social conservatives by giving them what they wanted even more–a rollback of civil rights for racial minorities. I can certainly see how these other three decisions could stave off the extreme attacks on the Court’s legitimacy that became the norm after Roe v. Wade. Sinister stuff.

That’s why we need to emulate the great civil rights leaders, like Harvey Milk and Martin Luther King Jr., who understood that all struggles against oppression are connected. Dr. King is best known for his leadership of the African-American civil rights movement, of course, but he also preached against the Vietnam War, over the objections of some of his African-American followers who feared he would dilute his primary message and lose political capital. Milk built bridges to constituencies not traditionally supportive of gay rights, when he stood up for the Teamsters’ Union in the Coors Beer boycott.

The Windsor decision is important. It makes life a lot more secure for gay couples and their children–IF they happen to live in states where same-sex marriage is, or plausibly could become, legal. But the imminent disenfranchisement of traditionally Democratic voting blocs in conservative states all but ensures that same-sex marriage won’t be a reality there anytime soon. LGBT activists should work to restore equal access to the polls, not only as allies, but also because these struggles directly intersect.
 

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