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COMMUNITY VOICE

The Supreme Court and the diminishing effects of federalism

Monday, July 1, 2013 - 8:36 am

The Supreme Court of the United States has capped off another contentious session by ruling on four major cases: affirmative action, voting rights and two same-sex marriage cases. All of these cases enjoin the diminishing effects of federalism as the Founders envisioned. None of the cases directly affect Indiana – at least not yet.

In Fisher v. University of Texas the justices punted – sort of. In a ruling that gives hope and consternation to both supporters and detractors of affirmative action, the court effectively said that a lower appeals court did not apply the “strict scrutiny” test, which is a tighter standard, not permitting a court to accept a school’s claim that its current admissions process uses race in some permissible way without closer examination of how the process works. The court ruled that this is essentially what both the district court and Fifth Circuit did. It remanded the case back to the lower courts for further review.

Justice Anthony Kennedy argued that the appeals court was simply too deferential to the University of Texas, particularly with its efforts to bring what the court called a “critical mass” of minority applications. The university should have applied the strict scrutiny standard, as outlined in Grutter v. Bollinger (2003) and University of California v. Bakke (1978).

In Shelby County v. Holder, the court ruled that Section 4 of the Voting Rights Act, which establishes a “coverage formula” to determine which states fall under the pre-clearance requirement determined by Section 5, is unconstitutional. Congress has changed the formula several times over the last 48 years, making it impossible for states that have a history of racial discrimination to change their voting laws without receiving approval, or “pre-clearance” from the federal government.

Chief Justice John Roberts in his majority opinion argued that “the Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” He then argued that the social and political environmental conditions that precipitated Sections 4 and 5 do not exist today, at least not in the same proportion as they did.

This effectively lays the groundwork for states such as Texas to continue with their stringent voter ID law and redistricting plans.

Finally, in two separate same-sex marriage cases –Hollingsworth v. Perry (California’s “Proposition 8” case) and U.S. v. Windsor (the federal Defense of Marriage Act case) – the court boosted the possible nationalization of same-sex marriage while at the same time setting the stage for multiple state battles, pitting both sides in battle array.

In Hollingsworth, the court ruled same-sex marriages can continue in California. It declined to rule one way or the other on Proposition 8, the referendum that defined marriage in California as between one man and one woman.

What the court did rule in a 5-4 decision was that the proponents of Proposition 8 did not have the legal standing to proceed, thus the court did not rule on the content or merits of the case itself. This extends the distinct possibility that California will declare same-sex marriage legal.

The second case – US vs. Windsor – was equally divisive, also with a 5-4 ruling. Justice Anthony Kennedy wrote in the majority opinion that the 1996 Defense of Marriage Act (DOMA), which among other things defined marriage as between one man and woman, thus providing federal benefits including tax benefits to couples in traditional marriages, was in violation of the Fifth Amendment and thereby unconstitutional. The court did not consider a different clause of the law that allows states to refuse to recognize same-sex marriage.

Indiana already has a same-sex marriage statutory ban, but now Republican leaders, including House Speaker Brian Bosma and Senate President Pro-Temp David Long, will pursue passage of a constitutional amendment during the 2014 term. If passed, that amendment will go before Hoosier voters in November 2014.

Once again, these series of cases show one important commonality: the role of federal versus state governments in determining what is in the public interest.

Stephen M. King, an adjunct scholar of the Indiana Policy Review Foundation, holds the R. Philip Loy Endowed Chair of Political Science at Taylor University.