Gays Gain While Minorities Lose in Historic Rulings

The U.S. Supreme Court ended its blockbuster civil-rights term pointing in opposite directions: cutting legal protections for racial minorities even as it bolstered them for gays.

Decisions requiring tougher court scrutiny of affirmative action and striking down much of the landmark 1965 Voting Rights Act were still fresh yesterday when the court cleared the way for gay marriage in California and invalidated a federal law that denied benefits to married same-sex couples.

“I think it was a victory for American democracy,” President Barack Obama said today in Senegal, where he was starting a three-nation tour of Africa.

Only 24 hours earlier, minority-rights advocates were denouncing the court’s conservative majority for gutting the Voting Rights Act, the law that opened the polls to millions of blacks across the South. The court voted 5-4 to nullify the requirement that all or parts of 15 states get federal clearance before changing their election rules or voting lines.

Obama called that ruling “a mistake” because suppression of minority voting still exists in some regions of the country. He said he wanted to work with Congress in a non-partisan way to address the defects cited by the top court.

The decision “frighteningly opens the door for underhanded schemes to reduce the electoral power of minority communities,” said Representative James Clyburn of South Carolina, the No. 3 Democratic leader and highest-ranking black member of the House.

Boldest Step

The voting rights ruling was the boldest step yet by Chief Justice John Roberts’s conservative majority to roll back decades-old legal protections for racial minorities. For gay-rights advocates, the marriage decisions were perhaps their biggest victory, fueling what was already a surge of momentum.

The dichotomy is attributable -- in part -- to Justice Anthony Kennedy, the court’s frequent swing vote. Kennedy was in the majority in both the voting rights decision and the ruling striking down the Defense of Marriage Act.

In the voting case, he joined Chief Justice John Roberts’s opinion and its statement that “our country has changed” since the 1960s. In the marriage case, Kennedy wrote the majority opinion, saying the law “demeans” same-sex couples.

The other two rulings paint a more nuanced and complicated picture of the nine-member court. On affirmative action, the justices reached a compromise, stopping well short of declaring that universities must stop considering race in admissions. The 7-1 decision directed a lower court to take a closer look at a University of Texas admissions program.

‘Interpersonal Dynamic’

The California case, though framed as a test of whether the U.S. Constitution guarantees a right to same-sex marriage, defied any ideological characterization as the court sidestepped the central issue on procedural grounds.

Joining Roberts in the majority were fellow Republican appointee Antonin Scalia and Democratic appointees Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg.

“Who knows what the interpersonal dynamic was that produced the split,” said Michael Dorf, a former Kennedy clerk and a constitutional law professor at Cornell University Law School in Ithaca, New York.

With the addition of California, 13 states and the District of Columbia will have legalized same-sex marriage, seven of them in the last year alone.

The Supreme Court said the sponsors of Proposition 8, the 2008 ballot initiative that banned gay marriage, lacked the legal standing to appeal a trial judge’s order blocking the measure. California state officials had refused to defend Proposition 8.

‘Just Begun’

Within two hours of the ruling, California Governor Jerry Brown said counties will start issuing same-sex marriage licenses as soon as an appeals court implements the decision.

“The debate over marriage has only just begun,” Austin R. Nimocks, a lawyer for a group that supported Proposition 8 in the case, said in a statement. “Marriage -- the union of husband and wife -- will remain timeless, universal and special, particularly because children need mothers and fathers.”

The Defense of Marriage Act ruling is likely to have longer-term legal significance. Although in one part of his opinion, Kennedy emphasized the primary role of the states in defining marriage, another part was full of language that will provide fodder to gay-rights advocates in future court battles.

The law “places same-sex couples in an unstable position of being in a second-tier marriage,” Kennedy wrote. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

Scalia Dissents

As Kennedy announced the outcome in the courtroom, one audience member squealed and several cried, wiping their eyes with tissues. Outside, hundreds of demonstrators, some carrying rainbow-colored flags and others singing in a gay men’s chorus, crowded onto the sidewalk in front of the court.

Scalia, in a dissenting opinion joined by Justice Clarence Thomas, another Republican appointee, said Congress can constitutionally draw distinctions between heterosexual and same-sex marriage.

“The Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy or the consumption of alcohol,” Scalia wrote.

Without a uniform federal definition of marriage, he questioned what would happen to couples who wed in one state and move to another state that doesn’t recognize gay marriages.

“When the couple files their next federal tax return, may it be a joint one?” he wrote.

Obama Call

Obama yesterday congratulated by telephone the four people who challenged the California ban. “Paul invited him to our wedding; he said OK,” Jeff Zarrillo of Burbank told reporters outside the Supreme Court, referring to his partner Paul Katami.

Companies including Apple Inc. and Morgan Stanley urged the Supreme Court to back gay-marriage rights. “Apple strongly supports marriage equality and we consider it a civil rights issue,” said company spokeswoman Kristin Huguet. “We applaud the Supreme Court for its decisions today.”

The gay-marriage cases are Hollingsworth v. Perry, 12-144, and United States v. Windsor, 12-307.

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