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Health & Fitness

What Were They Thinking

Talk about an exciting week. It’s pretty rare that you see the Supreme Court become the focal point of the news for a week straight. It’s also the time of year where everyone you know becomes a constitutional law professor. As the dust settles on the Facebook debates, Twitter exchanges and water cooler workplace debates, I wanted to summarize what I wanted to see from the Court and what we actually got on a medium more conducive than Facebook.


There were multiple court decisions this past week that showed the rightward and decidedly pro Chamber of Commerce tilt of our current Court. That said, 3 major cases this week ate up most of the media attention (and rightfully so). As I’m sure a ruling on whether legal advice constitutes a transferable good is far less compelling to the average SCOTUS watcher, we’ll just cover the big three: gay marriage, the Voting Rights Act and affirmative action.


In Fisher vs. University of Texas, the SCOTUS effectively punted on ruling on whether affirmative action withstood constitutional scrutiny, opting to remand it to the lower court and reminding both the court and universities of the need for strict scrutiny and narrow tailoring when implementing the program. This decision, in theory, both maintains the integrity of such practices while also insuring that these programs do not become a sole decider in an applicant’s admission, but help normalize differences in social and monetary status when applying to competitive schools. The fear (that I share with other Court watchers) is that the Court set up a test that is as, a practical matter, impossible to meet. It essentially sets up a system that guts affirmative action in public universities without saying that’s what they’re doing because of the bad publicity that would garner given the fact that the Court was about to similarly gut the Voting Rights Act. In the South we call that putting lipstick on a pig.

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I was very pleased when the Court ruled that both the lower court’s ruling on Proposition 8 stood (thanks to a lack of standing) and that DOMA was unconstitutional under the Due Process Clause. This is a great step towards making sure our gay citizens are afforded the same benefits and protections under the law that straight couples have enjoyed for decades. This ends years of federalized discrimination based upon sexuality. Unfortunately, the narrow purview of the ruling means that in many states, especially in the South, it may be years until we see the ability of gays to marry and be recognized at a state level. Many states have passed strict constitutional amendments which limit the ability of gays to be married, which are extremely difficult to overturn. I wish that the Supreme Court had ruled broadly on this issue, especially in the Proposition 8 case, as this issue will continue to be a sticking point in states. A broad ruling like in Brown would have helped speed up and end the discrimination on a state-wide level. I suspect future cases will try to push this and given the 5-4 nature of the opinion in the DOMA case it lays out all the more how important, ensuring a better confirmation process (by better I mean with a much more restricted filibuster hurdle), ensuring the Senate stays in Democratic hands and that we elect a Democrat to the White House in 2016. The ability to move on this issue depends on all three of these factors.


Then there is what is probably the worst decision and the one based least on constitutional law and most on ideological politics. Disappointment of the week is an understatement. Mary Macs being out of fried chicken is a disappointment. The Courts overturning of Section 4(b) of the Voting Rights Act was a train-wreck for small “d” democracy. This section was central to the preclearance clause in Section 5 of the VRA and without it, Section 5 becomes unenforceable. This ruling comes on the heels of multiple voter suppression laws that were passed by states in preparation for the 2012 election. Many of these laws were thwarted by the VRA and with its power diminished (despite the support of an overwhelming majority of Congress) suddenly states are free to begin imposing discriminatory voting laws which disenfranchise minority communities. This case, more than most, also showcases the judicial activism of the Robert’s court in a way which has been unseen since possibly the early 20th century. Instead of simply reviewing the constitutionality of the bill, the Court has taken it upon itself to legislate what constitutes appropriate criteria for preclearance after the Congress had reviewed and passed the bill.

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Never really have I seen s group of Supreme Court decisions amount to a rallying cry for political action (with the possible exceptions of how Brown v Board of Education and Roe v. Wade galvanized the political right wing). The end of some discriminatory anti-gay laws, the restricting of affirmative action and the evisceration of the Voting Rights Act will likely trigger the floodgates to open on new voting regulations in states which are aimed squarely at minorities. (Texas comes to mind) and further attempts in some states to make it difficult if not impossible for future pro gay rights majorities to undo the damage of State Constitutional Amendments codifying discrimination. In taking the good with the bad, I hope that Congress will move to enact new guidelines for preclearance quickly and efficiently, so that the VRA continues to insure that millions of Americans are not disenfranchised. But mostly I am reminded that the real way and probably the only practical way to preserve our civil rights is to get organized and get out and vote in 2014!

Reprinted from 5th District State Sen. Curt Thompson's (D-Tuckerblog. Thompson represents parts of unincorporated Duluth, Norcross, Tucker, and Lawrenceville. Also, check the senator out on Facebook and Twitter.

P.S.- Please take my blog on the VRA, located here – http://www.makingyourvoicecount.com/survey.html



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