The week of June 24, 2013 was an exceedingly mixed bag for many of us. On one hand, the Supreme Court struck down the Act to Define and Protect the Institution of Marriage (DOMA) that was enacted in 1996 on June 26th. Then President Bill Clinton agreed with both houses of Congress that a federal law that allowed states to refuse to recognize same-sex marriages was a good thing—effectively barring same-sex married couples from being recognized as spouses for the purpose of federal laws or receiving federal marriage benefits—insurance benefits for government employees, social security survivor’s benefits, immigration, bankruptcy, filling joint tax returns, the exclusion of same-sex spouses from the laws protecting families of federal officers, laws evaluating financial aid eligibility, federal ethics laws applicable to other-sex spouses. Clinton, along with other legislators, later advocated for DOMA’s repeal and in 2011, the Obama administration announced that it concluded that Section 3 was unconstitutional and although it would continue to enforce the law while it existed, it would no longer defend it in court. The June 24th ruling from the Court declared Section 3 of DOMA unconstitutional under the Due Process Clause of the Fifth Amendment.
As one who was legally married in Connecticut in 2012, it has been a bit strange to longer be legally married in the eyes of the state of Tennessee where my spouse and I have recently moved. We are taking all the legal steps we need to to assure the rights we had in Connecticut will be in place here in Tennessee and we are waiting to hear what this will mean for us in filing our federal taxes and so forth. When the religion reporter for our local Nashville paper called to get my take on the defeat of DOMA, I surprised him a bit with my lack of unbridled enthusiasm. I explained to him that when my partner and I decided that the best way we could think of to signal our desire to make a public declaration of the life long commitment we have with each other, we did not talk about our legal rights. What mattered then and continues to matter now and going forward is how we live into our commitment to each other—this is the crucial part of marriage for us.
But there was and is more. As pleased as I was to see DOMA be declared unconstitutional—after all why would you want to discourage folks declaring their love and dedication to making a life together—I could not put aside the bitter disappointment I felt when the same Court in the same week as it announced its ruling on DOMA had struck down the key provisions (Section 5) in the Voting Rights Act of 1965 (VRA) on June 25th. The VRA was meant to prevent racially discriminatory voting laws from being enacted in states with a history of such practices. And one the day earlier, June 24th, the Court upheld the major precedents regarding admissions that count race as a factor (Fisher v. University of Texas), but then told the lower courts to be much more diligent about race-neutral alternatives to achieving diversity. This was far from being a punt as many have described it on the part of the court. To my eye and ears, this looks like a warning rather than a punt.
The VRA was gutted and it should not be lost on any one that state Republican policymakers moved swiftly to enact a series of new voting restrictions—despite the fact that there is little to no evidence that voter fraud is pressing problem. These restrictions primarily target minority groups, students, and the poor—not folks trying to subvert the proper procedures for casting their votes. However there is some hope. Although gutted, the VRA is not dead but it will mean that those who will surely challenge many of these voting restrictions will have to rely on Section 2 of the Act that bans voting procedures that discriminate on the basis of race, color, or members in one of the language minority groups. What this means, in part, is that many dispossessed groups will have to continue to prove, in courts, that they are citizens of our republic and have a constitutional right to cast their vote. In terms of affirmative action in admissions, at the heart of my concern is Justice Kennedy’s language or lack of it in writing for the majority (7-1) opinion—he does not mirror Chief Justice Roberts language of 2007 that “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” Kennedy looks for “additional guidance: in cases that did not deal with academic institutions and moves toward rejecting the core idea that universities present a special context: “On this point, the University receives no deference.” I have long argued that establishing quotas to achieve affirmative action goals is an ineffective and ultimately detrimental way to try to establish an even playing field—in fact I think it is a lazy way to accomplish these goals. This is very true for educational institutions.
What I take away from the week of June 24th is that it easier for us, as a nation (and as individuals) to talk about sex and sexuality than it is about race and racism and classism. None are easy conversations, however. Much justice-making must still be done.