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Posts Tagged ‘doma’

How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage

Posted by Peter M. Shane on June 27, 2013

Justice Kennedy’s opinion in United States v. Windsor immediately and deservedly now enters the canon of momentous Supreme Court human rights decisions. Historians and others will likely debate whether the Court’s disposal of the Prop 8 case on technical standing grounds — allowing same-sex marriage to proceed in California, but imposing no constitutional constraint on other states — was or was not the optimal outcome. The more optimistic view, of course, is that the Court’s restraint preserves the momentum of the gay rights movement without triggering the kind of political backlash that might have been engendered by a 5-4 decision holding prohibitions of same-sex marriage unconstitutional.

The political force of the Windsor and Perry cases, however, will be diminished by the Court’s evisceration of the Voting Rights Act in Shelby County v. Holder. A five-Justice majority held, in effect, that Congress could not constitutionally maintain a scheme designed to prevent and remedy racially discriminatory voting practices in the South because that scheme has apparently been successful in preventing and remedying at least some racially discriminatory voting practices. That conclusion, devastatingly refuted in Justice Ginsburg’s blistering dissent, is — to use her word — a stunning act of judicial “hubris.” The Fourteenth and Fifteenth Amendments explicitly give primary authority to Congress, not the Court, to determine the appropriate enforcement of their majestic guarantees. The Court’s determination that Congress just didn’t think hard enough about voting rights in 2006 to justify its latest extension of the Voting Rights Act is preposterous.

Shelby County also puts into context Justice Scalia’s vituperative DOMA dissent. He decries the Court’s “exalted conception” of its role in American life. He “promises” his readers that “T[he only thing that will ‘confine’ the Court’s holding [on DOMA vis-a-vis the larger question of same sex-marriage] is its sense of what it can get away with.” “It takes real cheek,” Scalia writes, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here–when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”

What makes this bluster so repugnant is that its author had no problem overturning a congressional act intended to preserve individual rights — the Voting Rights Act — that has been repeatedly and vigorously debated, was supported by successive bipartisan majorities in the national legislature, and which deprives not a single human being of life, liberty, or property. His fulmination, on the contrary, is on behalf of a statute that effectively did deprive married members of a political minority — men and women lawfully married under the laws of their respective states — of federal benefits potentially critical to their health and welfare.

It is also repugnant because Shelby County, in its determined obliviousness to America’s racial history, is of a piece with another Roberts decision Scalia supported — Parents Involved in Community Schools v. Seattle School District No. 1. In that 2007 case, a 5-4 Court held unconstitutional two school districts’ voluntary efforts to accomplish actual racial integration based on a reading of Brown v. Board of Education that was positively Orwellian. In Chief Justice Roberts’s world, the nastiness of racism is a thing of the past, apparently to be remedied on that rare occasion it may raise its ugly head only through case-by-case litigation, in which the laws of inertia clearly favor defendants, not targets of discrimination.

But it is important to see the DOMA and VRA cases, along with the week’s other civil rights decisions, in the same frame for yet another reason. The Court’s voting rights decision has now made it much harder for Democratic voters in the Deep South to achieve more progressive political representation.

Consider that the Supreme Court has now effectively left the definition of marriage for the determination of individual state legislatures. Likewise, in two employment discrimination cases this week, the Court has left it to Congress, our national legislature, to undo the Court’s ridiculously narrow understandings, respectively, of who qualifies as an employee’s supervisor and when retaliatory action against a sexual harassment claimant ought be actionable.

But, if Republican-controlled state governments in the South now wish to change their electoral systems to entrench their control of state government or to preserve a disproportionate share of their respective state delegations in Congress, it will be much easier to do so. As a formal matter, they will still be legally forbidden to adopt practices with the intent or effect of discriminating by race. Yet that legal guarantee will no longer be enforced through an efficient administrative process by the Justice Department. Individual voters, at their own expense and shouldering the burden of proof in litigation, will typically have to take the initiative (and the years of effort necessary) to challenge those practices. It won’t be pretty. Inertia again favors the bad guys, which is exactly what the Voting Rights Act sought to prevent.

In the Windsor and Perry cases, the Court has given Americans much to cheer. The Court has also left much, however, to a political process that the Court has befouled by taking the side of state rights against actual democracy.

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Not Defending DOMA: A Conscientious and Responsible Decision

Posted by Peter M. Shane on February 25, 2011

A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration’s decision not to defend the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office.  He wrote:  “For decades, presidents, Democrats and Republicans alike, have taken the position that it’s the executive’s obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution’s command that the president ‘shall take Care that the Laws be faithfully executed.'”

This position, however, is wrong on history and reflects an incomplete reading of the Constitution.

In analyzing this question, it’s important to distinguish two very different things:  the executive duty to carry out the law and the President’s duty to defend statutes challenged in court.  On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law.  In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced:  “Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional–at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department.” 

The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights.  Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.

In reaching this position, Attorneys General – like Presidents – have to take into account two different provisions of the Constitution.  One is the “Take Care Clause” mentioned by Professor Winkler.  The central purpose of that clause is to prohibit the executive suspension of statutes, a key protection for the integrity of the legislative process going back to the 1688 Declaration of Rights in England. 

The other provision, however, is the presidential oath, which requires Presidents to “preserve, protect, and defend the Constitution” – presumably, all of it.  In carrying out laws that the President regards as unconstitutional, he might seem to be in violation of this straightforward vow.  But, regarding unconstitutional laws, the courts are available to protect the public from their operation.  The danger to constitutional checks and balances of allowing Presidents simply to ignore laws they disagree with is too obvious and too grave to be ignored.  Presidents simply have to strike a balance.  And, with regard to legal implementation, the right balance is, almost always, to carry out the laws Congress enacts.

Defending laws in court is a different matter for three obvious reasons.  First, the executive is not claiming to have the final say on legal implementation — or even interpretation.  The challenged law will remain on the books – and enforced – unless the courts rule otherwise.

Second, the executive stance does not deprive the law of defenders.  In the case of DOMA, for example, courts are likely to allow Congress to intervene and offer a defense.  This is exactly what happened when the executive branch declined to defend the constitutionality of the legislative veto in the 1983 Chadha case.

Third, government attorneys are officers of the court.  As advocates, they are bound by professional and ethical norms.  An important question, then, for the Justice Department is how far to go in pressing arguments in a judicial forum if the Department does not think the arguments are valid. 

President Reagan’s first attorney general, William French Smith, articulated a very restrictive stance on this question:  “In my view, the Department has the duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.” 

His immediate predecessor, however, Benjamin Civiletti, staked out a position that left more room for discretionary judgment.  In a letter to a Senate committee, he wrote:  “The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his.”

Attorney General Holder’s letter explaining the decision not to defend DOMA represents a rigorous and conscientious implementation of the Civiletti view.  It does not deny, as Civiletti went on to say, that “when the Attorney General is confronted with . . . a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”  But it also does not portend any executive branch power grab.  Taking this careful, highly deliberate step in defense of what the President and the Attorney General take to be the right view of the Constitution is consistent with the best interpretation of the executive’s obligations towards the Constitution and the rule of law.

In short, one may debate the Attorney General’s legal analysis – although, for the record, I agree with it.  In taking their stance, however, President Obama and the Attorney General have acted well within the institutional norms long followed, to good effect, by their predecessors.

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