ACSBlog

by Jeremy Leaming

It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

“DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”

by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

In my earlier guest blog on Shelby County, AL v. Holder, I suggested that the conservative justices of the Supreme Court would be tempted to offer a post-racialist narrative concerning the pre-clearance provisions of the Voting Rights Act. 

The justices did not disappoint. Justice Anthony Kennedy asked whether Alabama should remain “under the trusteeship of the United States government.” Chief Justice John Roberts asked whether “the citizens in the South are more racist than the citizens in the North.” Both of these comments implicitly ask whether the long history of race has been atoned for once and for all.

And then there was Justice Antonin Scalia’s statement on the Voting Rights Act. In explaining the almost unanimous consensus for the 2006 reauthorization of Section 5, Scalia said:

Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

On one level, this quote fits the post-racial narrative. Yet Justice Scalia intended a deeper message by invoking the rhetoric of “racial entitlement.” That message is the ahistorical belief that race-conscious analysis is immoral and leads to corrupt outcomes. Establishing this concept is part of a larger post-racial agenda (as we have seen already in the affirmative action debates), and the Voting Rights Act is the latest battleground. Yet, if applied to the right to vote, it will fly in the face of the plain text of the Constitution and our democratic consensus to insure equality in voting.