Supreme Court, Gay Marriage, and voting rights

The Supreme Court's decision about gay marriage in the USA clears the way for gay marriages to take

place. The short version of the story is that the court struck down the 1996 law "Defence of Marriage Act" which banned the practice.

All of which might make any G&P student think that this is a progressive, activist court, establishing new rights in the mode of Roe v Wade or Brown v Board. It is important to notice that there are in fact two related decisions here; the overturning of California's Proposition 8, and the overturning of 1996's DOMA.

Also, it is worth pointing out that the reality is more complex as fundamentally this was not a decision about the constitutionality of gay marriage.

The 2013 decision (US v Windsor) about DOMA arguably is more significant, since the decision says that the federal government cannot discriminate against gay couples. It is not saying that gay marriage is constitutional, but that discriminating against it is not constitutional, and falls foul of the fifth amendment (the "due process" clause). Individual states can pass laws allowing gay marriage (and many have), but it is still up to the states to do so. Many states have laws which discriminate against gay couples.

Importantly, the decision allows same-sex couples to enjoy the same tax-breaks, and benefits that different-sex couples do at a federal level, but does not at a state level (see left for a map of the US states and their opinion about gay marriage over time). A very good analysis from the legal position can be found here at the SCOTUS blog which discusses other related discrimination (so-called "mini-DOMAs").

The decision about Proposition 8 (2013's Hollingsworth v Perry), like the DOMA decision was all about legal procedure, and so did not deal with the constitutionality of the banning of gay marriage under Proposition 8 (a referendum) at all.

A good summary about the US v Windsor decision is here at the Huffington Post, and an interesting analysis of where this puts the Roberts' Supreme Court can be found here (the short version of this article is that Roberts is more conservative than might be seen at first as he is increasingly emphasising the rights of the states at the expense of the federal government).

Interestingly both decisions about gay marriage were passed 5-4, although Windsor saw the Justices split along conservative / liberal lines, and Perry did not.

One of the other recent controversial decisions was 2013's Shelby County v Holder, which saw the justices strike down part of the important civil-rights era Voting Rights Act of 1965. Analysis of that can be found here at the liberal Huffington Post. Again, although the details are very complex, the decision essentially removes some of the protection for minorities and their ability to vote.

[Picture Credits - The New Yorker & The Huffington Post]