Wiston Papers

Is justice blind or is it the people who are watching?

Justice often is symbolized by a woman grasping a sword in one hand, holding a balanced scale in the other--her eyes obscured by a blindfold.  This image of Lady Justice represents the lofty aspiration of judicial impartiality critical to good governance and protection of fundamental democratic rights.  

Good law, supporters claim, comes from justices who are politically independent and rule without “influence from daily life.”   Critics of recent Supreme Court (SCOTUS) decisions, on the other hand, argue that justice is blind not impartial.   

Justice may at times seem blind, but many observers most certainly are.  

The reaction to the high court rulings this week on the Voting Rights Act clearly illustrates this.  And today’s decisions on the Defense of Marriage Act (DOMA) in New York and same-sex marriage in California have evoked equally emotional responses from supporters and opponents.

VOTING RIGHTS ACT OF 1965

In Shelby County vs Holder, the high court noted correctly that America has changed dramatically in the nearly 50 years since passage of the Voting Rights Act that struck down the “insidious and pervasive evil” of racial discrimination that prevented African-Americans from casting ballots.  The law was necessary then, but SCOTUS this week ruled it no longer is.  

The original statute applied to all states, but certain regions of America were targeted for extra scrutiny.  These “covered jurisdictions” had imposed special requirements for elections that effectively reduced voter turnout in the 1960s and 70s.

Congress has routinely renewed the Voting Rights Act since passage--most recently in 2006 for another 25 years. But each extension lacked  modifications either to these original covered jurisdictions or the formulas local authorities had adopted to address discrimination.  SCOTUS noted there now is high voter registration and turnout in these regions.  And to retain special scrutiny of these original jurisdictions is--in itself--a form of reverse discrimination against districts where such regress no longer is needed.  Those who expressed outrage at Monday’s ruling obviously either didn’t read that part of the ruling or chose to ignore it.  

The 5-4 decision was the right one.

SAME SEX MARRIAGE

In two separate decisions SCOTUS gave some comfort to same-sex couples and supporters  However, the scope of the rulings is not as broad as portrayed in first news reports.  

The Defense of Marriage Act (DOMA) of 1996 defined marriage as the union of a man and woman.  The law immediately affected millions of same-sex couples who became de facto second-class citizens subject to unequal federal income tax payments as well as Social Security and Medicare benefits.   

The Constitution expressly allows each state to define marriage.  But DOMA, the court says, violates  both the rights of same-sex couples as well as the states where such marriage is legal by imposing obligations on gay couples that do not apply to everyone.

In United States vs. Windsor, a female married couple was living in New York State.  When one woman died, the IRS denied the federal estate income tax exemption for the surviving spouse.  SCOTUS ruled that the IRS action put New York State and federal laws at odds.  

Initial news reports did not make clear the distinction between state vs federal rights when the Supreme Court declared DOMA unconstitutional. The 5-4 decision was the right one.

The California case of Hollingsworth vs. Perry turned on the question of who has standing in deciding legality of same-sex marriage.  It did not speak to marriage itself.

After the State Supreme Court ruled unconstitutional opposite-sex marriage as the only legal union, opponents successfully campaigned for and passed Proposition 8 that says marriage is between a man and woman.  But California state officials refused to enforce Proposition 8 and the issue eventually worked its way to the U.S. Supreme Court.

Today’s ruling stated that proponents of Proposition 8 lacked legal standing.  That is, supporters of the opposite-sex proposition failed to demonstrate that they themselves will suffer “personal and tangible harm” if the measure is rejected.  The 5-4 decision was the right one based on the narrowly prescribed point of law.

Don’t be misled my headlines that shout:

“Court voids U.S. Law and Clears Way for Vows in California”

“Justices clear way for same-sex marriage in California”

“Supreme Court rulings bolster same-sex marriage”

“A daggar into the heart of the Voting Rights Act”

“An Assault on the Voting Right Act”

“Court Upends Voting Right Act”

Despite such headlines the Supreme Court did not rule on same-sex marriage.  That was never the issue either in New York or California.  SCOTUS has been resolute in upholding the right of each state to decide issues of marriage within its borders.  

Did some observers including the media not understand that or did they choose to ignore the truth?

Contrary to reports on the Voting Right Act, the high court correctly observed that the law itself now is discriminatory as applied.  

Did some observers including the media not understand that or did they choose to ignore the truth?

I read every Supreme Court decision.  Yes, it took time.  But it was necessary to get an accurate account of what our nine justices said on each of these important cases.

As a journalist, I’m skeptical of initial reports on breaking news.  I reserve judgment until I’ve verified the information myself.  

   

Steve Coon

June 26, 2013