Guest Post

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.  

  • September 23, 2014
    Guest Post

    by Liz Kennedy, Counsel, Demos

    Today is National Voter Registration Day. Almost 2,000 partners around the country - student groups, educational institutions, unions, faith groups, civic leagues, libraries, worker centers, and elections agencies - are promoting opportunities for individuals to register to vote. Volunteers will spend hundreds of hours doing face-to-face outreach, technology will help voters find registration drives or, if available, register online, and tens of thousands of voters are expected to register to vote in a single day. This is a wonderful testament to civic organization in America.

    But even with these laudable efforts, too many unnecessary bureaucratic barriers block the ability of eligible persons to register to vote. Our voter registration systems are outdated and poorly functioning. Many today will ask their fellow citizens “would you like to register to vote?” but we should also ask why we don’t yet have a system of universal voter registration in 2014, when we have an urgent need and the technical capabilities to make it a reality.

    Universal or automatic voter registration shifts the burden of voter registration from the individual to the state. A democratic government has a duty to facilitate and promote civic participation, since it receives its legitimacy through the consent of the governed. A universal voter registration program ensures that eligible persons can exercise their freedom to vote unless they opt-out, rather than putting the burden on the majority of citizens who want to and do participate in the political life of the country to opt-in. That is the correct balance to strike in a democracy.

    Our electoral process serves crucial functions, including choosing elected representatives, setting the course for public policy, and allowing individuals to express their views on the public issues that impact their lives, families, and communities. But elections don’t serve these purposes well if we don’t all participate, and we have a voter participation problem in this country. In 2012, almost 61 million Americans voted for Mitt Romney, and almost 66 million Americans voted for President Obama, but over 90 million eligible American citizens did not vote at all.

  • September 19, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

    On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

    Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

    This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

    To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

    Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • September 18, 2014
    Guest Post

    by U.S. Representative Keith Ellison (D-Minn). This post is part of our 2014 Constitution Day symposium.

    The right to vote is under attack in many of our states. The Supreme Court is piling on. If you take the decisions in Shelby, McCutcheon, and Citizen’s Untied, you could conclude that the Supreme Court is making it easier to buy an election than to vote in one. 

    We need to amend the Constitution to declare an affirmative right to vote for all Americans. Prior to ratifying the 15th, 19th and 26th amendments to the Constitution, millions of Americans were denied the right to vote based on the color of their skin, their gender, and their age. All three amendments, along with the Voting Rights Act passed in 1965, outlawed discrimination, but didn’t protect Americans’ right to go to the polls. 

    Many states have found ways around outright discrimination based on race, gender, and age through voter ID laws, ending same-day registration and early-voting, and slowing the move to online voter registration. Widespread voting fraud is often the justification for these laws; however dozens of non-partisan organizations have discredited this claim. In fact, voter fraud is very rare.  Thirty-two states have voter ID laws that keep some 23 million Americans from voting. Those without photo ID are disproportionately low-income, disabled, minority, young, and older voters.  

    Voters in 15 states will find it’s much harder to vote this year than it was in 2012. Some of the Americans in these states were protected by section four of the VRA before it was struck down by the Supreme Court in Shelby. They’re now victims of a blatant attempt to disenfranchise voters who might threaten their majorities. 

    At a time when the Supreme Court is gutting the Voting Rights Act and opening the campaign finance flood gates, we should be vigilant in fighting laws that suppress voting and drown out the political speech of everyday Americans. An affirmative right to vote means Americans can exercise their right to vote without political interference. Under our current system without a guaranteed right to vote, over 8,000 voting jurisdictions make decisions about how to administer elections. The result is massive inequality between jurisdictions, both unintentional and intentional.