Modern Supreme Court Review

1. Modern Supreme Court Review The Learning Institute for Elders (“LIFE”) at the University of Central Florida October 8, 2013 By: Dr. Cynthia Schmidt, Director of the Center for Law and Policy Cynthia.Schmidt@ucf.edu

2. Article I, Article II, Article III

3. United States v. Windsor: Defense of Marriage Act

4. Facts • Edith Windsor and Thea Spyer began a relationship in 1963 and they married in Canada in 2007.  • They lived in New York.  New York at first recognized gay marriages from elsewhere then made them lawful in NY as well.  • Ms. Spyer died in 2009, resulting in a tax bill of $360,000  which Ms. Windsor would not have had had they been married as an opposite sex couple.  • Ms. Windsor paid the taxes in escrow then sued regarding the constitutionality of the Defense of Marriage Act.

5. Procedural History • The U.S. Court of Appeals for the Second Circuit struck down the law.  • The Obama administration continued to enforce the federal law but urged the courts to strike it as unconstitutional.  • House Republicans stepped in to defend the law since the Obama administration was urging the Court to rule for the plaintiff.  • Does the federal government have standing to sue?

6. U.S. Supreme Court • The case was decided by the U.S. Supreme Court in June of this year. • Holding:  The Court agreed with the Second Circuit and found the DOMA unconstitutional.

7. Huge Impact • There are 1,000 federal laws that are triggered by the definition of “marriage.”  • This ruling extends to gay marriages, specific to federal benefits, to the entire country.

8. Gay Marriage across States • States such as Florida can still bar gay marriage.  For now.  • But the Court’s language, while specific to federal benefits, will be argued to apply to states’ laws on marriage itself.

9. Interpreting the Law • The Court has to interpret the law, the Court can’t make up the law out of thin air.  This is called stare decisis, meaning let the decision stand.  • The Court needs to be consistent with itself.  • So what law, what cases did the Court use to get to this result?  What was the Court’s reasoning?

10. Constitutional Rights • “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’” 

11. Lawrence v. Texas • In 2003, in Lawrence v. Texas the U.S. Supreme Court ruled that consensual noncommercial gay sex cannot be criminal

12. Justice Kennedy • “For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

13. Due Process • “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”

14. Two Tiers of Marriage • “By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

15. DOMA undermines marriages sanctioned by the states • “By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify.

16. “No legitimate purpose” for DOMA • “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

17. Hollingsworth v. Perry

18. Hollingsworth v.  Perry • Arises out of California.  • Proposition 8 went to the state voters via the ballot.  • Passed by a slim margin, defining marriage as between a man and a woman.  The U.S. Supreme Court decided it on a technical basis, called standing.

19. The U.S. Supreme Court avoided the ultimate question • The U.S. Sup. Ct ruled, 5-4, that the Petitioner did not have standing to appeal the case to them, because officials in California declined to appeal the Circuit Court of Appeals ruling that Prop 8 was unconstitutional.  • This ruling by the Supreme Court, that they couldn't set aside the lower court because the case wasn't lawfully before them, left in place the circuit court ruling which was that the Prop 8 was unlawful.  Thus gay marriage is now lawful in California.  Basically the Court avoided answering the question (for now) about state laws on gay marriage.

20. Current state of the law: •  -States currently get to choose the definition of marriage.  • -The federal government decided in the last month  that gay couples can marry in states that allows it, then travel back to their home state, and still claim a lawful marriage under federal law even if the state won't recognize the marriage. 

21. Future of the Issue • -The language in United States v. Windsor will be used to challenge state laws against gay marriage. • -The Court is split, and the justices might view states rights as a different analysis than what they wrestled with in the Windsor facts.  But this is a huge case for the marriage equality movement.

22. 1965 Voting Rights Act. • Shelby County, Alabama, v. Holder, Attorney General • In another 5-4 ruling the Supreme Court struck down the heart of the Voting Rights Act, freeing 9 states, mostly in the South, to change their election law without advance federal approval.

23. Federal Permission • "The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism."

24. Equal State Sovereignty • "And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.... Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years."

25. Voting Rights Act History • The Act was reauthorized many times, based on the history of voting in those states.  • (Is the history relevant or not relevant?)

26. “Our country has changed.” • The question was whether racial minorities in these states with a history of discrimination continued to face barriers in voting. • "Our country has changed." - Chief Justice Roberts wrote, pointing to, among other things, the election of President Obama.

27. Yet voting discrimination still exists • "At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, 'the Act imposes current burdens and must be justified by current needs.'"

28. Can Congress agree? • Essentially Congress has to ensure that any legislation it passes about voting issues speaks to current conditions. • However, will our current Congress be able to reach agreement on where federal oversight is required?

29. Immediate Impact • Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. • Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation. • How do we line up these cases from 2013 together?  "States rights" is a common theme thus far.  But what about the Supremacy Clause?  Language from the Voting Rights case: • "Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.

30. How far does the States Rights arguments go? • States rights is one reason the Court held that federal benefits should be given to couples in states that allow gay marriage, because to hold otherwise would undermine the state's goals of sanctifying the relationship.

31. States’ Autonomy • The Court in the Windsor and Shelby County was very concerned about state autonomy, state-level decision making. How far do we take it? • Do the states have the ability to the decide for themselves whether to allow gay marriage in that particular state?  • Should this be a state by state decision?

32. Affirmative Action:  Fisher v. Texas • Relevance of affirmative action beyond education:  The awarding of government contracts, government hiring decisions, government promotions criteria. • Facts of Fisher:

33. Precedent Cases • University of California v. Bakke • Gratz v. Bollinger • Grutter v. Bollinger

34. What do the precedent cases give us? • Grutter v. Bollinger and Gratz v. Bollinger heard in tandem. • In 1997, Barbara Grutter, applied for admission to the University of Michigan Law School. Jennifer Gratz and Patrick Hamacher applied to Michigan’s College of Literature, Science, and the Arts. • All three, as white students, were denied admission. • The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body."  The law school used “soft variables” whereas for undergrads they gave automatic points. • Bakke prohibited outright racial quotas. Can you give points for someone as a minority?

35. Levels of Scrutiny • Discussion of the different levels of scrutiny. Strict Scrutiny. Vs. -Reasonable and not arbitrary and showing -Fair and substantial relation to the object of the legislation. -Narrowly tailored.

36. Fisher Court looking at the precedents: • " Grutter made clear that racial 'classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.'  And Grutter endorsed Justice Powell’s conclusion in Bakke that 'the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.'  Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications."

37. How much deference to give the universities? • "Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that theadmissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference."

38. “Soft variables.” • Previously the Court has given a great deal of deference to the universities on how the soft variables are used and how the holistic applications are analyzed. • This ruling shifts this deference.

39. “Good faith.” • The universities assert "good faith."  • Some lower courts have found in affirmative action cases that an assertion of good faith coupled with the admissions personnel's familiarity with the needs of the institution means the courts should defer.

40. Strict scrutiny means scrutinize, yes? • " Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that 'the mere recitation of a benign or legitimate purpose for a racial classification is entitled to little or no weight.' Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice."

41. So who won? • So the Fisher case was sent back to the lower federal court to analyze the Texas universities standards with less deference, greater scrutiny.

42. Broader Impact • This is a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs were relieved. • Yet conservatives and other opponents of the current version of affirmative action will try to use the court’s ruling as a road map to bring future cases. • Upcoming case: Schuette v. Coalition to Defend Affirmative Action.

43. Results of all Cases • The judicial branch will shift the issue to the legislative branch regarding the Voting Rights matters in the 9 states that have been under scrutiny.  • Yet, the judicial branch will use greater scrutiny on Affirmative Action cases, at least in Higher Ed at this point. • The majority of the Court used strong "due process" language regarding gay marriage, but at this point only regarding federal benefits.  What about states rights? Can states decide?

44. Is the Court logical? Does the rulings fit together? Must they? • Do the rulings make sense?  • What do you think?