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«Abstract 41 I. Introduction 41 II. Shelby County v. Holder: The “Demolition” of the Voting Rights Act 43 III. United States v. Windsor: The ...»

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Equality and Federalism in U.S.-American Civil

Rights Law: A Review of Two Recent Supreme

Court Cases on Same-sex Marriage and Voting


Blake Emerson*



I. Introduction 41

II. Shelby County v. Holder: The “Demolition” of the Voting Rights Act 43

III. United States v. Windsor: The Dignity of Marriage 52 IV. Conclusion 57 Abstract This article reviews two recent United States Supreme Court decisions concerning civil rights: Shelby County v. Holder, and United States v.

Windsor. In Shelby County v. Holder, the Court invalidated an important section of the Voting Rights Act, which designated certain jurisdictions as requiring “preclearance” for changes in their election laws. In United States v. Windsor, the Supreme Court found unconstitutional a provision of the Defense of Marriage Act which defined marriage as between a man and a woman for the purpose of federal law. This article identifies two points of commonality between these two decisions: an emphasis on federalism, and on a formal conception of equality. It concludes by suggesting that certain aspects of the decision in United States v. Windsor might point towards a more substantive conception of equality.

I. Introduction The most recent term of the United States Supreme Court saw two decisions which crystallize two important precepts of contemporary U.S.Ph.D. candidate (Political Science), Yale University, J.D. candidate, Yale Law School.

Thanks to Laura Schaefer for her very helpful critiques, and to the Referentenbesprechung at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, where these ideas were first presented.

ZaöRV 74 (2014), 41-59 http://www.zaoerv.de © 2014, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 42 Emerson American constitutional doctrine: a formal conception of equality, emphasizing the non-discriminatory treatment of all individuals before the law;

and the principle of federalism, which vests the States with sovereign prerogative to determine and delimit certain rights and duties.

The two decisions at issue – United States v. Windsor1 and Shelby County v. Holder 2 – addressed different constitutional questions. Shelby County concerned the constitutionality of the Voting Rights Act (VRA), perhaps the most important piece of civil rights legislation in the history of the United States. In its decision, the Court severely limited the efficacy ofthat law, by holding that the trigger for one of its key enforcement mechanisms was unconstitutional. Windsor concerned the constitutionality of section 3 of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of federal law. The Court held that this provision violated the constitutional principles of equal protection and due process of law by its disparate treatment of gay and lesbian couples whose marriages had been recognized in State law.

The most obvious point of convergence in these opinions was a concern to preserve the role of States to originate, define, and delimit legal entitlements. Shelby County relied upon a principle of the “equal sovereignty of the states” to find unconstitutional statutory provisions placing special burdens upon one group of States with regard to their voting laws. The decision in Windsor, similarly, relied upon the historical power of States to define marriage to put into question the constitutionality of a federal statute which discriminated between same-sex and opposite-sex marriages which had been recognized on equal terms by certain States. In both cases, the Court emphasized that the States have a primary role in defining the civil and political rights of their citizens – rights which the federal government can only impinge upon with sound justification. In each case, the Court struck down the law in question because they found the federal government’s justification wanting.

The somewhat more subtle point of convergence was the solidification of a conception of legal equality as the formally equal, non-discriminatory treatment of all individuals. This approach to equality forbids intentional forms of discrimination between individuals based on their race, sex, or sexual orientation. Between the Civil Rights Revolution in the 1960s and the present this formal conception of equality has contended with another, more substantive conception. This latter, substantive conception emphasizes the need to avoid the subordination of certain social groups to others, rather 1 United States v. Windsor, 133 S.Ct. 2675 (2013).

2 Shelby County v. Holder, 133 S.Ct. 2612 (2013).

ZaöRV 74 (2014)

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than to avoid discrimination against certain individuals through the use of racial and other classifications.3 This approach forbids public laws and policies and private policies which produce a disparate impact, or unequal outcomes, upon various social groups. While this effects-based conception of equality could be found in the Supreme Court jurisprudence in the late 1960s and early 1970s, 4 and remains entrenched in certain provisions of statutory law,5 the Supreme Court has increasingly moved away from it, and embraced the formal, anti-discrimination conception of equality. Windsor and Shelby County largely confirm this trend. Windsor highlights the ways in which the DOMA discriminated against homosexuals in staterecognized marriages. Shelby County, while not explicitly decided on questions of individual equality, is arguably motivated in part by an interest in uprooting statutory provisions which aim to address subordination of racial groups through the use of racial classifications.

This article will summarize and contextualize the rulings in Windsor and Shelby County with these two points of commonality – federalism and formal equality – as the connecting threads. I will conclude with a brief consideration of how the principle of dignity, which was central to the holding in Windsor, might provide a basis for a renewed concern for questions of social subordination in the hands of a future, more progressive Court.

II. Shelby County v. Holder: The “Demolition” of the Voting Rights Act In Shelby County, the Court ruled that a key section of the VRA was unconstitutional. In doing so, the Court relied primarily on principles of federalism and the equality of the sovereign states. Underlying this explicit baCf. O. M. Fiss, Groups and the Equal Protection Clause, Philosophy and Public Affairs 5 (1976), 107 (arguing for a distinction between reading of the Equal Protection Clause through an “anti-discrimination principle”, as opposed to reading it through a “groupdisadvantaging principle”, the latter of which Fiss supports).

4 See, e. g. Griggs v. Duke Power, 401 U.S. 424 (1971) (reading the Civil Rights Act to prohibit employment practices producing racially unequal results without justifiable “business necessity”, even if such practices were not intentionally discriminatory), and Hunter v.

Erickson, 393 U.S. 385 (1969) (rejecting the use of city referenda to review anti-discrimination ordinance, on the grounds that, despite such a practice having no facially discriminatory purpose, its “impact fell on the minority”), and Loving v. Virginia, 388 U.S. 1, 11 (1967) (ruling that a state prohibition on interracial marriages was unconstitutional in part because it was “designed to maintain White Supremacy”).

5 See, e. g. Civil Rights Act of 1964, Pub. L. No.88-352, §§ 704-714, 78 Stat. 241, 258-265 (1964) (as amended) (current version at 42 U.S.C. §§ 2000e-2000-e17 (2012)).

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sis of the decision, however, was a discomfort with the use of racial classifications to achieve adequate minority political representation.

The first VRA became law in 1965.6 Congress enacted it pursuant to the 15th Amendment to the Constitution, ratified in 1870. The 15th Amendment

reads, in relevant part:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”.7 It gives Congress the power “to enforce this article by appropriate legislation”. 8 The 15th Amendment was one of the so-called “Reconstruction Amendments”, intended to provide for the civil and political rights of African Americans in the southern States in the wake of the Civil War.9 Between 1877, when the federal army ended its occupation of the South, and 1965, when the VRA was enacted, the 15th Amendment was for the most part not effectively enforced. Blacks were excluded from voting in the South through numerous laws, which used devices such as literacy tests as a basis to deny blacks the right to vote.10 The Supreme Court invalidated certain discriminatory laws over this period, and there were several legislative efforts in the 50s and 60s to prevent racial discrimination in voting, but these were mostly ineffective. Lawsuits by individuals or by the federal government to contest discriminatory laws were too cumbersome and expensive to counter the policies of southern governments intent on excluding blacks from voting.

The VRA sought to finally give the 15th Amendment teeth. Section 2 of the Act creates a nationally applicable rule against racially discriminatory voting rules. Section 2 can be enforced through the usual mechanism of lawsuits in federal courts, initiated either by private individuals or the Department of Justice. Section 5, however, creates a novel “preclearance” procedure, under which certain jurisdictions must get permission from either the Department of Justice or the United States District Court for the District of Columbia, before it can change its election rules.

6 Pub. L. No. 89-110, § 2, 79 Stat. 437 (1965).

7 U.S. Const. amend. XV, § 1.

8 U.S. Const. amend. XV, § 2.

9 See E. Foner, Reconstruction: America’s Unfinished Revolution: 1863-1877, 1988, 281 et seq.

10 Literacy tests, which were often quite onerous, fell unequally on blacks and whites, since black literacy was lower than white literacy, due to unequal and segregated education.

Moreover, election officers typically used their discretion to allow white citizens to vote, irrespective of test results, while denying the same right to blacks. See South Carolina v. Katzenbach, 383 U.S. 301, 312 (1966).

ZaöRV 74 (2014)

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The effect of section 5 was to shift the burden of proof to the local government seeking to change its election rules. Jurisdictions must prove to the court or to the agency that the proposed voting rules do not deny or abridge the right to vote. This makes it very difficult for jurisdictions to circumvent judgments which invalidate their discriminatory voting policies with new policies which achieve the same result as those which have been outlawed. Section 5 has produced a judicial and administrative process in which judges and agency officials consider, amongst other things, whether proposed changes cause retrogression in minority representation, or reduce their ability to elect candidates of their choice. As all parties to Shelby County acknowledged, this preclearance provision has proved an exceptionally powerful and effective tool in insuring minority voting rights in States which had historically failed to respect them.

Section 4 of the VRA determined which jurisdictions were covered by the preclearance provision in section 5. It was this section which was the subject of controversy in Shelby County. Section 4 stated that section 5 would apply to any jurisdiction which, in November 1964, used literacy, educational achievement, or moral character qualifications to disqualify potential voters, and in which less than 50 % of the voting population voted in the presidential election of 1964, or was registered to vote. This requirement captured the electoral jurisdictions in the southern States, as well as some other outliers. The enforcement regime under sections 4 and 5 of the VRA was set to expire in 5 years, but was renewed in 1970, 1975, 1982, and finally in 2006.

The last renewal was set to expire in 25 years, and included significant amendments, which strengthened the law by reversing Supreme Court interpretations of the statutory language.11 In the last two congressional renewals, no changes were made to the coverage formula in section 4 used to determine the applicability of the preclearance procedure in section 5. The coverage formula was not altered in large part because of the difficulty of finding sufficient political support for an altered formula.12 Instead, ConThe new law, 42 U.S.C. § 1973c (2000) (West), overturns the Court’s ruling in Reno v.

Bossier Parish, 528 U.S. 320 (2000), stating that a voting law with discriminatory purpose violates the Voting Rights Act, whether or not it diminishes minority voting from the status quo.

It also overturns the Court’s ruling in Georgia v. Ashcroft, 539 U.S. 956 (2003), by stating that jurisdictions must be denied preclearance if their voting laws diminish the ability of minority to “elect their preferred candidate of choice”. Arguably, the decision of Congress to reject the Court’s interpretation of the existing law with these Amendments provoked the constitutional confrontation in Shelby County v. Holder (note 2).

12 As Nathaniel Persily has argued: “If Congress had added or subtracted jurisdictions based on some new criteria then the justification for those criteria would become the central political and constitutional question underlying the bill.... Nothing akin to the neutral trig

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gress sought to create a massive body of evidence in the legislative record to show that the existing coverage formula, though aged, still captured those jurisdictions in which the most significant voting rights violations persisted.

Despite Congress’ failure to devise a new coverage formula based upon current voting practices, it bears emphasis that Congress has repeatedly, with increasing majorities, and as recently as 2006, confirmed the necessity of the VRA and its preclearance procedure to address the problem of discrimination in voting.

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