"Scene at the Signing of the Constitution" by Howard Chandler Christy
It’s been a heady few days at One First Street. Two major legislative enactments—the Defense of Marriage Act and a key provision of the Voting Rights Act—were struck down as unconstitutional. (Affirmative action was given a temporary stay of execution. Look forward to that decision in a few years.) On its face, the fate of DOMA and Section 4 of the VRA seem to fall on opposite sides of history: one opens up a new world of federal benefits to a historically oppressed class, the other guts the crown jewel of the Civil Rights Movement. But a perverse logic links the two opinions, driven by the swing justice in both cases: Anthony Kennedy. That logic is the logic of states’ rights.
Some of you may grimace at the phrase “states’ rights”; a few of you, possibly wearing pointy white hoods, may be more inclined to pump your fists in the air; and the rest of you are probably wondering what it means for states (as opposed to, you know, people) to have rights. The concept of states’ rights has taken many forms. At its core, it stands for the idea that under our federal system of government, states should be able to do as they please without unnecessary interference from Washington.
If that sounds a bit antiquated, you’re onto something. The idea of states’ rights has a dark pedigree: it was the rallying cry of Southern politicians clamoring against “tyrannical” federal efforts to end Jim Crow. It was no accident that Lyndon Johnson, in exhorting Congress to pass the VRA, famously clarified that “there is no issue of states' rights or national rights. There is only the struggle for human rights.”
The Supreme Court’s flirtation with states’ rights hasn’t been quite so pernicious or expressly tied to a racist agenda, but it has been a favorite principle of centrist conservatives seeking to blunt the application of federal rights to individual citizens threatened by the machinery of state governments. For example, Sandra Day O’Connor (the Supreme Court’s swing vote before Kennedy assumed that role) once wrote that a criminal defendant’s failure to follow a state procedural rule meant he could not challenge his death sentence in federal court, because states and state courts have a “dignitary interest” in the finality of their criminal justice processes. In other words, disrespecting a state’s dignity would be a greater wrong than executing an American citizen in violation of his federal rights.
So it isn’t surprising to find the rhetoric of states’ rights permeates the Court’s opinion in Shelby County v. Holder, the case striking down the VRA provision. Chief Justice and Eagle Scout for Life John Roberts wrote the opinion for the Court, but Kennedy provided the decisive fifth vote, and the opinion seems carefully crafted to appeal to a federalist sensibility. Roberts opines that the VRA represents “a drastic departure from basic principles of federalism” and also from “the principle that all states deserve equal sovereignty”—departures that the Court feels are no longer justified under current demographic and political conditions. Roberts really thrums the states'-rights banjo at moments: he extols the “integrity, dignity, and residual sovereignty of the States,” and opines that “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was founded.” (Can you hear the distant swell of drums and fifes?) This song of lament crescendos with the opinion’s suggestion that Congress has been using the Fifteenth Amendment—the bitterly won prize of the Civil War, and the constitutional basis of the VRA—in a way that is just plain mean to the old Jim Crow states of the South: “The Amendment is not designed to punish for the past,” says Roberts. Rather, “its purpose is to ensure a better future.”
None of this is really a surprise. What is surprising, however, is that this same language of states’ rights runs through Justice Kennedy’s opinion in United States v. Windsor, which struck down DOMA. Kennedy writes that “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States,” and “the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” Marriage is a “dignity conferred by the States in the exercise of their sovereign powers,” Kennedy reasons, and DOMA must fall because its effect is “to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Although Kennedy suggests at one point that his analysis has nothing to do with federalism, that’s hard to square with the opinion itself, which is less troubled by the homophobic character of DOMA than the fact that the law tramples on rights conferred by states in an area where they traditionally had the upper hand vis-à-vis the federal government.
What to make of this? So are states’ rights not all bad? On one level, yes: both the states and the federal government can do good and bad things, and while often it’s the good Feds versus the bad states, the reverse is sometimes true. Gay marriage is one example, but there are others—pot legalization comes to mind. But there’s a deeper problem with this kind of thinking. Framing an issue—any issue—in terms of states’ rights obscures the fact that a bedrock purpose of any decent political system is to protect the rights of individuals, and to soften the sharp edges of popular democracy by curbing laws and policies that seek to punish marginal groups just because they’re perceived as weird and different. States’ rights are a double-edged sword, but civil rights cut only one way. For example, another provision of DOMA, which the Supreme Court did not rule on, provides that a state that does not have gay marriage is not required to acknowledge a gay marriage recognized by another state. The logic of Kennedy’s opinion in Windsor would seem to preclude, or at least pose a barrier, to a constitutional challenge to this provision, and arguably would prohibit the federal government from passing a reverse-DOMA statute requiring states to recognize the gay marriages of other states.
By focusing on the traditional role states have played in defining marriage, Justice Kennedy ignored the guiding principle of the civil rights movement, a principle that gave us the Fifteenth Amendment and the Voting Rights Act, and which many Americans gave their lives to see enshrined in law: the principle that every human being has an intrinsic claim to equality and dignity, no matter what state he or she lives in. Without that principle, the Supreme Court is just an umpire between the states and the federal government, rather than the defender of Bill of Rights it has been in the past and can be again.
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