State Net Capitol Journal: Supreme Court Weighs In On Major ‘Equal Protection' Cases

State Net Capitol Journal: Supreme Court Weighs In On Major ‘Equal Protection' Cases

Last week was an historic one for the U.S. Supreme Court. The justices handed down rulings on three weighty issues that have been contested in statehouses across the country for decades: affirmative action, same-sex marriage and the Voting Rights Act. The decisions will reshape the meaning of the U.S. Constitution's equal protection clause and likely ensure continued debate on the subject in the states.
The equal protection clause, a provision of the Fourteenth Amendment barring states from denying any persons within their jurisdictions "equal protection of the laws," was adopted in the wake of the Civil War to protect newly freed black slaves. Its meaning and scope have been deliberated in the states ever since, with the four cases decided by the Supreme Court last week among the more recent manifestations of that long running debate. 
The first case, Fisher v. University of Texas, arose from a lawsuit filed by a white woman, Abigail Fisher, who alleged that she was denied admission to the university in 2008 because of her race. The university guarantees admission to the top students in every high school in Texas, but the rest of the applicants from within the state and elsewhere are evaluated under standards that take race and ethnicity into account as well as academic achievement. Having just missed the guaranteed academic admission cutoff, Fisher contended that her race cost her a spot in the university's freshman class. 
The ideologically divided court managed to find common ground on the case. In a 7 to 1 vote, with Justice Elena Kagan having recused herself because she'd previously worked on the case as President Obama's solicitor general, the court affirmed its precedents on the use of race to achieve diversity in college admissions but directed lower courts reviewing admission policies to consider whether "workable race-neutral alternatives would produce the educational benefits of diversity." With those pronouncements the justices ordered the case sent back to the lower court from which the appeal had originated. 
Some characterized the high court's ruling as punting on the issue. And the decision certainly seemed to have resolved little in some quarters. 
"We have not been told through this ruling that anything we're currently doing is contrary to law," said Henry Broaddus, dean of admission at the College of William & Mary in Virginia, which uses race in its application review process. 
But Richard D. Kahlenberg, an analyst with the left-leaning Century Foundation, said that as a result of the court's ruling, "universities are going to be really pushed to justify the use of race," adding that the decision would "push universities toward alternatives: class-based, economic affirmative action." 
Such alternatives are already being employed in Florida, which banned the use of race in admissions in 2001. According to a Century Foundation report, the University of Florida has managed to significantly raise its population of Hispanic students by stepping up outreach to minority high school students, boosting scholarships for first-generation college students from low-income families and implementing a state program created to ensure that students in the top 20 percent of their high school graduating classes can obtain slots at the state's universities regardless of race. 
But the number of black and Hispanic students at the University of California's Berkeley and Los Angeles campuses has fallen significantly since passage of a 1996 voter referendum banning racial preferences in that state's public university admissions process, despite extensive race-neutral efforts to boost diversity. 
"The record shows we tried pretty much everything that seemed feasible," said Patricia Gandara, a professor of education and co-director of the Civil Rights Project at UCLA. "The university tried to be responsible in this. But the diversity challenge is getting more and more difficult." 
There was much less ambiguity — and consensus among the justices — in the high court's second major decision of the week, Shelby County v. Holder. In a 5 to 4 vote, the court struck down a key provision of the Voting Rights Act of 1965 requiring (as of the ruling) nine states, 53 counties and two townships with a history of discrimination to seek federal preapproval before making changes to their voting laws. 
"In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics," Chief Justice John G. Roberts Jr. wrote for the majority. "Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were." 
Some thought the existence of a provision in the VRA allowing covered jurisdictions that have been free of violations for ten years to "bailout" from preclearance — and which nearly 250 have successfully employed — might be enough to spare the act from judicial action. Many had also predicted the court would strike down Section 5 of the VRA, setting forth the preclearance requirement. But instead it struck down Section 4, laying out the formula for determining which states should be subject to preclearance, which included such considerations as whether a state required individuals to pass a literacy test in order to vote. 
The current preclearance coverage scheme, Roberts wrote, is "based on 40-year-old facts having no relationship to the present day." 
The chief justice wrote that the VRA was the right response to the "entrenched racial discrimination" that existed at the time of its enactment, when black voter turnout in Mississippi stood at 6.4 percent. But in the most recent election, he stated, "African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5." He also referred to the murders of civil rights workers James Chaney, Andrew Goodman and Michael Schwerner near Philadelphia, Mississippi in 1964 and the beating of marchers seeking the right to vote by police officers in Selma, Alabama in 1965, pointing out that today "both of those towns are governed by African-American mayors." 
In her dissent, which she summarized from the bench — an unusual step indicating deep disagreement — Justice Ruth Bader Ginsburg challenged the majority's assertion that the work of the Voting Rights Act was done. 
"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet," she said. 
The court left open the prospect of Congress updating its formula for determining which states should be subject to preclearance. 
"Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions," Roberts wrote. 
But most analysts say it is unlikely the current Congress would be able to reach agreement on the subject. 
Changes in election procedures in Section 5-covered jurisdictions, however, including voter ID requirements, restrictions on early voting and even redistricting maps, could come right away. 
"With today's decision," said Texas Attorney General Greg Abbott, "the state's voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government." 
Mississippi also pledged to immediately implement its voter ID law, and North Carolina Republicans said they would quickly try to adopt a similar measure. Florida Gov. Rick Scott (R) and the GOP-controlled Legislature, meanwhile, will be free to set their state's early voting hours however they choose. And Fulton County, Georgia will be able to use county commission districts Republican state legislators drew over the objections of Democrats there. 
Southern conservatives were jubilant about the ruling. 
"Over the last half-century, Georgia has reformed, and our state is a proud symbol of progress," said Gov. Nathan Deal (R). "Today's decision guarantees that Georgia will be treated like every other state — a right we have earned." 
But many conservatives didn't have as much to cheer about the Supreme Court's two other major rulings last week on same-sex marriage, which came just minutes apart. In the first, United States v. Windsor, the court overturned part of the federal Defense of Marriage Act of 1996 — passed with bipartisan support and signed by President Bill Clinton — defining marriage as the union of a man and a woman for purposes of federal benefits. Swing-vote Justice Anthony M. Kennedy wrote the majority opinion, joined by the court's four liberal-leaning justices, Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer. 
"DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal," Kennedy wrote. 
The ruling will immediately extend many benefits, including Social Security survivor benefits, immigration rights and family leave, to same-sex couples in states where same-sex marriage is legal, and it will also allow the Obama administration to expand other benefits through executive action. 
And although the court stopped short of declaring a federal right for same-sex couples to marry, the ruling may provide legal ammunition for those seeking to overturn state bans. Following the announcement of the decision, Alabama's first openly gay lawmaker, Rep. Patricia Todd (D), said she planned to challenge her state's ban, which was approved by the state's voters in 2006. "The court really did open it up for us to have legal standing to challenge these," she said. The American Civil Liberties Union also announced it would launch a national effort to challenge state bans (see Governors in this issue). In the court's other action on same-sex marriage, Hollingsworth v. Perry, a different 5-4 majority, with Chief Justice Roberts joined by fellow conservative Justice Antonin Scalia and liberals Ginsberg, Breyer and Kagan, refused to issue a ruling on California's same-sex marriage ban, Proposition 8, on technical grounds. The justices said the case had not been properly placed before the court because the state had declined to appeal a trial court's decision against it and backers of Prop. 8 had appealed in the state's place, which they were not entitled to do. 
That decision leaves in place a trial court victory for two same-sex couples who had sought to marry and effectively makes California the 13th state to legalize same-sex marriage. 
Attorney David Boies, who was part of the team that argued against Prop. 8, called the day of the rulings "wonderful." 
"This is a wonderful day for our plaintiffs," he said. "It's a wonderful day for everyone around this country, and in California in particular, that wants to be able to marry the person they love. But it's a wonderful day for America because we have now taken another important step toward guaranteeing the promise that is in our constitution...that all people are created equal." 
But Harold Johnson, an attorney with the Pacific Legal Foundation, which argued in favor of Prop. 8 before the court, said the ruling was a major blow to California's initiative process. 
"Whether one opposes or supports Proposition 8, it's disturbing that the U.S. Supreme Court has seriously undercut California's venerable institutions of direct democracy," he said. "In essence, this ruling lets elected officials pull the plug on duly enacted initiatives simply by refusing to defend them against federal lawsuits." 
The decision may lead to changes in California and other states with similar voter-backed ballot measures to ensure they are properly represented in legal actions. 
Together, the week's rulings, with the court leaning conservative on race issues and liberal on gay rights, were hard for some observers — even those who thought the decisions might go that way — to reconcile with the historical context of the 14th Amendment. 
"What's weird about it would be the retreat on race, which is the paradigm example of what the 14th Amendment is meant to deal with, coupled with fairly aggressive action on sexual orientation," University of Chicago law professor David A. Struass told The New York Times days before the rulings were issued. 
But he also said: "One thing that seems to be going on with these historically excluded groups is that they come to be thought of as just another interest group. Blacks seem to have crossed that line." 
Gays and lesbians, on the contrary, Times Supreme Court correspondent Adam Liptak pointed out in the same article, "have yet to achieve formal legal equality." 
"They are not protected against job discrimination in much of the nation," he said, and they "may not marry their same-sex partners in most of it." 
After last week, however, they will have their marriages recognized by the federal government in at least some of it. 

— Compiled by KOREY CLARK

The above article is provided by the State Net Capitol Journal. State Net is the nation's leading source of state legislative and regulatory content for all states within the United States. State Net daily monitors every bill in all 50 states, the District of Columbia and the United States Congress - as well as every state agency regulation. Virtually all of the information about individual bills and their progress through legislatures is online within 24 hours of public availability.

If you are a subscriber, you can access State Net Bill Tracking, State Net Full Text of Bills and State Net Regulatory Text . If you are interested in learning more about State Net, contact us.

To subscribe to the Capitol Journal and access archived issue go to the State Net Capitol Journal.

For more information about LexisNexis products and solutions, connect with us through our corporate site.