Court’s co­nun­drum: Re­straint or ac­tivism?

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASHINGTON — When the Supreme Court con­vened in 1967 to de­cide the case of Lov­ing vs. Vir­ginia, 16 South­ern states had made it a crime for in­ter­ra­cial cou­ples to marry. The trial judge who con­victed Richard and Mil­dred Lov­ing said such laws re­flected di­vine will.

“Almighty God cre­ated the races white, black, yel­low, malay and red, and he placed them on sep­a­rate con­ti­nents,” the judge said. “The fact that he sep­a­rated the races shows that he did not in­tend for the races to mix.”

Then- Chief Jus­tice Earl War­ren quoted those words be­fore declar­ing laws ban­ning in­ter­ra­cial mar­riages un­con­sti­tu­tional. “The free­dom to marry” is one of “the ba­sic civil rights” and a “fun­da­men­tal free­dom,” he said. “The prin­ci­ple of equal­ity at the heart of the 14th Amend­ment” does not per­mit a state to deny mar­riage to a cou­ple be­cause of race.

Nearly half a cen­tury later, Jus­tice An­thony M. Kennedy, who as a boy in Sacra- mento knew War­ren, quoted the for­mer chief jus­tice Fri­day in his own land­mark de­ci­sion strik­ing down state laws that for­bid mar­riage be­tween same- sex cou­ples. The “right to marry” is a fun­da­men­tal free­dom, Kennedy said.

Only the barest ma­jor­ity on the court agreed, how­ever. The case was de­cided 5 to 4, and Kennedy’s opin­ion drew a sting­ing re­tort from the cur­rent chief jus­tice, who ac­cused the court of “steal­ing this is­sue from the peo­ple.”

“Just who do we think we are?” John G. Roberts Jr. de­manded.

Roberts’ charge high­lighted one of the most diffi-

cult ques­tions con­fronting the nine jus­tices: In a time of chang­ing so­cial at­ti­tudes, when should they step in to al­ter or over­turn laws ap­proved by vot­ers or other elected branches of gov­ern­ment?

The is­sue has re­peat­edly di­vided the court in re­cent years, with jus­tices land­ing on both sides of the ques­tion, ar­gu­ing for ju­di­cial re­straint in some cases and for in­ter­ven­tion in oth­ers.

Two years ago, the same con­ser­va­tive jus­tices who ac­cused Kennedy and their lib­eral col­leagues of ac­tivism in the same- sex mar­riage de­ci­sion joined with Kennedy to strike down part of the 1965 Vot­ing Rights Act, even though the mea­sure had been ap­proved and ex­tended with nearly unan­i­mous sup­port in the House and Se­nate.

Key pro­vi­sions of the law re­quired South­ern states and cities with a history of dis­crim­i­nat­ing against black vot­ers to get clear­ance from the fed­eral gov­ern­ment be­fore chang­ing their elec­tion rules.

But in Shelby County, Ala., vs. Holder, Roberts said the con­tin­ued en­force­ment of the Vot­ing Rights Act was de­mean­ing to South­ern states and vi­o­lated “the fun­da­men­tal prin­ci­ple of equal sovereignty among the states,” a phrase that does not ap­pear in the Con­sti­tu­tion.

The four lib­eral jus­tices, in dis­sent, ex­pressed a ver­sion of the chief jus­tice’s com­plaint on Fri­day: Just who do you think you are?

The same di­vide was ap­par­ent in 2010 when the court de­cided a chal­lenge to re­stric­tions on cam­paign spend­ing.

Congress since 1907 had barred cor­po­ra­tions from putting their money into elec­tion cam­paigns, and for much of the 20th cen­tury, few peo­ple ar­gued that this vi­o­lated the 1st Amend­ment.

But in a 5- 4 opin­ion in the Cit­i­zens United de­ci­sion, Kennedy, Roberts and the three con­ser­va­tive jus­tices ruled these bans were un­con­sti­tu­tional. The four dis­sent­ing lib­er­als had called for re­straint.

Kennedy cast the cru­cial vote in all these cases.

He has been most will­ing to read con­sti­tu­tional rights broadly, join­ing the con­ser­va­tives to strike down cam­paign spend­ing bans on freespeech grounds, and join­ing the lib­er­als to rule that gays and les­bians are en­ti­tled to equal rights and lib­er­ties.

But Kennedy has been sen­si­tive to the slow pace of chang­ing public at­ti­tudes, as jus­tices have been for decades.

A year af­ter the War­ren court in 1954 struck down racial seg­re­ga­tion in schools, the jus­tices point­edly re­fused to hear a chal­lenge to the laws against in­ter­ra­cial mar­riage. Some jus­tices wor­ried it would fur­ther inf lame public opin­ion in the South.

In the next decade, about a dozen states in other parts of the na­tion re­pealed their bans or saw them struck down by state courts. But by 1967, when the court de­cided Lov­ing, it was clear the South­ern states would not re­peal their “racial in­tegrity” laws.

A sim­i­lar evo­lu­tion ap­peared un­der­way with state laws for­bid­ding same- sex mar­riage, though fewer than a dozen states had ac­tu­ally en­acted leg­is­la­tion per­mit­ting such mar­riages.

In 2003, Kennedy wrote a pow­er­ful opin­ion that struck down the last re­main­ing laws that crim­i­nal­ized gay sex. But he stopped short of say­ing gays had a right to marry.

A few months later, the Mas­sachusetts high court be­came the f irst to up­hold same- sex mar­riage.

The tide of public opin­ion be­gan to turn. By 2013, when the Supreme Court took up a chal­lenge to the fed­eral De­fense of Mar­riage Act, about half of the Amer­i­cans sur­veyed said they sup­ported same- sex mar­riage. Again, Kennedy spoke for a 5- 4 ma­jor­ity to strike down the fed­eral ban on ben­e­fits for same- sex cou­ples, but he did not say there was a con­sti­tu­tional right to marry.

When the is­sue re­turned this spring, judges across the coun­try had struck down bans on same- sex mar­riage, and more than 60% of the public voiced sup- port.

Yet while War­ren’s court ul­ti­mately ruled unan­i­mously to end bans on in­ter­ra­cial mar­riage, this court re­mains closely di­vided. Along with Roberts, Jus­tices An­tonin Scalia, Clarence Thomas and Sa­muel A. Al­ito Jr. said the court had no busi­ness de­cid­ing the is­sue.

The ques­tion is “not about whether, in my judg­ment, the in­sti­tu­tion of mar­riage should be changed to in­clude same- sex cou­ples. It is in­stead about whether, in our demo­cratic re­pub­lic, that de­ci­sion should rest with the peo­ple act­ing through their elected rep­re­sen­ta­tives, or with the f ive lawyers” who serve on the high court, Roberts said.

Kennedy, speak­ing for the ma­jor­ity, said gays and les­bians had waited long enough.

Some had waited as their life­long part­ners took sick, lin­gered and died, never hav­ing gained the full recog­ni­tion of mar­riage, he wrote. Many oth­ers were rais­ing chil­dren, but were de­nied their full rights as par­ents un­der the law.

It would be wrong to con­tend these men and women “dis­re­spect the idea of mar­riage,” Kennedy wrote. “Their plea is that they do re­spect it, re­spect it so deeply that they seek to find its ful­fill­ment for them­selves.... They ask for equal dig­nity in the eyes of the law. The Con­sti­tu­tion grants them that right.”

Mar­cus Yam Los An­ge­les Times

ANDY CHEN and Dave McCrory, part­ners for f ive years, take part in San Fran­cisco’s Pride Pa­rade on Sun­day, two days af­ter the Supreme Court de­clared, in a 5- 4 de­ci­sion, that the Con­sti­tu­tion grants same- sex cou­ples the right to marry.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.