Thursday, June 27, 2013

Limited Rulings for Gay Marriage End Court's Term

             The Supreme Court handed gay marriage supporters two important but limited victories on Wednesday [June 26] as it ended a momentous term marked by split-personality decisions on racial justice and criminal law and a string of victories for business interests.
              By a 5-4 vote, the Court struck down the federal Defense of Marriage Act (DOMA), the 1996 law that barred federal marriage-based benefits for gay and lesbian couples even if legally married in their home states.
              A different 5-4 majority appears to have set the stage for marriage rights for gay and lesbian couples in California by dismissing on legal grounds an effort by gay marriage opponents to reinstate the ban approved by voters in 2008 as Proposition 8.
              The two rulings on gay-marriage cases were announced with high drama to a packed courtroom as hundreds of gay marriage supporters filled the sidewalk in front of and across the street from the Supreme Court building. 
              Speaking for a majority that included the court’s four liberals, Justice Anthony M. Kennedy said DOMA served “no legitimate purpose” other than to classify their unions as a “second-tier marriage.” On that basis, he said the law violated the due process and equal protection principles imposed on the federal government under the Fifth Amendment (United States v. Windsor). 
              In a bitter dissent that he emphasized by reading from the bench, Justice Antonin Scalia accused the majority of “a judicial distortion” of the democratic debate on the issue. “The Court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat,” he said. “We owed both of them better.”
             Three other conservatives dissented — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — but only Thomas joined the bulk of Scalia’s opinion. Roberts argued only that the Court should not have decided the case because the Obama administration was no longer defending the law; he expressed no view on gay marriage.
              Kennedy stressed that the ruling’s impact was “confined” to those 12 states that have recognized marriage rights for gay and lesbian couples. In his separate dissent, Roberts emphasized that the decision left for future cases whether gay marriage bans — on the books in 37 states — are constitutional. New Mexico appears to be the only state with no clear law on the issue. 
              In a second decision, the Court ruled that supporters of Proposition 8 had no legal standing to appeal the 2012 ruling by the Ninth U.S. Circuit Court of Appeals to strike down the voter-approved measure reversing a California Supreme Court decision issued six months earlier. The state’s Democratic governor, Jerry Brown, and Democratic attorney general, Karmala Harris, refused to defend the initiative in court.
            Speaking for a cross-ideological majority, Roberts said the Prop 8 supporters lacked the “concrete and particularized injury” needed to allow them to litigate it in federal court. He was joined by fellow conservative Scalia and liberals Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan (Hollingsworth v. Perry).
           Dissenting, Kennedy warned that the ruling would undermine the initiative process. Giving state officials a veto over legal defense of an initiative “will erode one of the cornerstones of the state’s governmental structure,” Kennedy wrote. He was joined by conservatives Thomas and Alito and liberal Sonia Sotomayor. 
            Despite the limited nature of the rulings, gay marriage supporters from President Obama down celebrated the decisions. Obama personally placed congratulatory calls to the winning plaintiffs from Air Force one: New York City widow Edith Windsor, who was stuck with a $363,000 estate tax bill under DOMA after the death of her wife, Thea Spyer; and the two California couples who challenged Prop 8 after it had been upheld in state courts: Kristin Perry and Sandra Stier and Paul Katami and Jeffrey Zarrillo.
           The ruling apparently ensures that Windsor, now 84, will get the tax refund she claimed, with interest. The two California couples will also be allowed to marry, but California officials and Prop 8 proponents are disagreeing over the further impact of the decision. 
            The Supreme Court ruling vacated — or wiped out — the Ninth Circuit’s decision and ordered that court to dismiss the Prop 8 supporters’ appeal. That leaves in place the injunction issued by U.S. District Court Judge Vaughn Walker a year earlier. 
            Kamala Harris, the state attorney general, says Walker’s injunction applies statewide to all county officials. Brown echoed that view on Wednesday in instructing county officials to issue marriage licenses to same-sex couples on request. Prop 8 supporters said Wednesday that Walker’s ruling applied only to the four plaintiffs and Prop 8 remains the law in California. The Ninth Circuit said it would issue no orders for 25 days, the time period for a losing party to ask the Supreme Court for a rehearing.
             The two rulings, along with a relatively decision on federal criminal law, ended a busy two months at the Court that saw 39 decisions issued, almost half of the total number for the term: 79. Out of the 73 cases decided after argument, an unofficial count shows 33 came on unanimous votes (45 percent) with 23 decided by five-justice majorities (32 percent). The percentage of unanimous decisions is the second highest in Roberts’ eight years as chief justice; the Court ruled unanimously in 49 percent of its argued decisions in the 2005-2006 term, Roberts’ first.
              Earlier in the week, the Court on Tuesday had cheered political conservatives and angered liberals and traditional civil rights groups with a 5-4 decision striking down a key provision of the Voting Rights Act of 1965 (Shelby County v. Holder). The ruling struck down as outdated the formula used for determining which states and localities are subject to the act’s preclearance provision, which requires approval for election law changes by the Justice Department or a federal court in Washington
              The day before, the Court left both liberals and conservatives claiming a measure of victory in a decision reaffirming the right of universities to use race as a factor in admissions decisions but setting a somewhat higher burden to justify such policies (Fisher v. University of Texas). The ruling sent back to the Fifth U.S. Circuit Court of Appeals a challenge to policies at the University of Texas’s flagship campus in Austin. Advocates on opposing sides differed on the likely result of the remand. 
              Along with the rulings on DOMA and the Voting Rights Act, the Court also held a third federal law unconstitutional: a provision of a 2003 law requiring groups seeking anti-HIV/AIDS funding to adopt policies opposing prostitution and sex trafficking. Roberts wrote for a 6-2 majority in holding the law amounted to an unconstitutional infringement of freedom of speech (Agency for International Development v. Alliance for Open Society). Under Roberts, the Court has issued 12 rulings in eight years striking down federal laws. 
              In criminal law, the Court backed law enforcement by upholding the authority to take DNA samples from arrestees to investigate unsolved crimes (Maryland v. King) but favored suspects’ rights by refusing blanket approval for taking a blood test from drunken driving suspects without a judicial warrant (Missouri v. McNeely). In an important decision for federal courts, the justices ruled that juries, not judges, must make any factual findings needed to raise a defendant’s mandatory minimum sentence (Alleyne v. United States).  
              The string of pro-business rulings included two decisions on Monday [June 24] limiting workers’ ability to prevail in job discrimination suits under Title VII of the Civil Rights Act of 1965. In one decision, the Court limited the definition of “supervisor” used in determining whether an employer can be held responsible for racial or sexual harassment by an employee’s coworker (Vance v. Ball State University). In a second, the Court raised the burden of proof for an employee blaming an adverse employment decision on retaliation for complaining about alleged discrimination (University of Texas Southwestern Center v. Nassar).  
              Other pro-business decisions backed enforcement of class waivers in arbitration (American Express v. Italian Colors Restaurant), required more concrete evidence on damages in class actions (Comcast Corp. v. Behrend), and blocked a class action if the named plaintiff is fully compensated ( Genesis Healthcare Corp. v. Symczyk).
             In one other pro-business decision, the Court generally barred suits in U.S. courts for atrocities committed abroad by foreign defendants against foreign victims. The ruling dismissed a suit by Nigerian refugees now living in the United States against the Dutch-English oil company for allegedly aiding Nigeria’s military dictatorship in the 1990s in a brutal putdown of protests against oil drilling in the Niger delta. All nine justices agreed on the result, but four liberal justices would have allowed some such suits if U.S. interests were involved (Kiobel v. Royal Dutch Petroleum Co.).



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