The Supreme Court Gives — and Takes Away

Gay rights enter the mainstream, but racial equality is forgotten even as Paula Deen rules the airwaves

5 min readJun 27, 2013

This week the Supreme Court declared that one great American civil rights movement has officially entered the mainstream and another is essentially over. The court’s bold ruling in favor of same-sex marriage is a cause for celebration. But it is unfortunate that in two other cases, the justices indicated — in a week when now former Food Network chef Paula Deen seemed to be everywhere on her I’m-not-racist media blitz — that we need to stop worrying so much about racial discrimination.

First, the good news: In striking down the Defense of Marriage Act, the court delivered a sweeping victory to supporters of same-sex marriage. The court didn’t resort to technicalities or weaselly words. It made clear that same-sex couples that want to marry are entitled to equal dignity under the Constitution. By “treating those persons as living in marriages less respected than others,” Justice Anthony Kennedy wrote for a five-justice majority, “the federal statute is in violation of the Fifth Amendment.”

It is worth pausing for a moment to consider just how far the nation has come — and how quickly. It was not long ago that gay marriage was a fringe cause, something even many gay people doubted they would see in their lifetimes. The Supreme Court has moved tremendously, too. In 1986, in Bowers v. Hardwick, an ugly decision that has since been consigned to the dustbin of history, the court dismissed the claim that a law criminalizing sodomy violated gay people’s constitutional rights was “at best, facetious.”

A good indication of just how completely the court’s majority embraced the equal rights of gay people is how bitter Justice Antonin Scalia was in his odd and meandering dissent. He complained that “it is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it . . . [as] enemies of the human race.”

Yes, shed a tear for the poor people who want to discriminate against and demean gay people — they are being treated so cruelly. It was hard to read Justice Scalia’s self-pitying opinion without thinking of Samantha Bee’s hilarious recent Daily Show segment on how the true victims of intolerance in the gay marriage debate are religious people who hate gays. (Bee: “You can’t even go on the radio anymore and condemn a whole subset of people to hell without getting some blowback.”)

The court did pull one significant punch: It did not rule that states must recognize same-sex marriages performed in other states — though this ruling will no doubt increase the legal pressure on them. At the federal level, though, the impact will be huge. Same-sex spouses should now be eligible for roughly 1,000 spousal benefits that they were previously denied — including the ability to file joint federal tax returns.

The Supreme Court delivered a second bit of good news to gay people: In another case, it upheld a lower-court court ruling striking down California’s Proposition 8. It was a narrow decision — on the technical question of whom has a right to sue — but it gave the green light for same-sex marriages to resume in the nation’s most populous state.

Meanwhile, the Court declared that the other great civil rights movement of our time — the fight to end racial discrimination — is drawing to a close. The Court struck down a key part of the 1965 Voting Rights Act, one of the crown jewels of the Civil Rights Movement — and a law that has helped millions of African-Americans to vote, even when the powers that be did not want them to. In striking down Section 4 of the act, the court gutted the system of “pre-clearance,” the requirement that before states and localities make changes in elections that could hurt minority voters, they need approval from the Justice Department.

Writing for the court’s five-member conservative majority, Chief Justice John Roberts insisted that the racial discrimination that once made the Voting Rights Act necessary belonged to a different era — or as he put it in the sometimes clunky language of the law, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”

The thing is, even though nearly five decades have passed since the Voting Rights Act became law, there is still a lot of discrimination perpetrated against minorities at the polls. To prove the point, Justice Ruth Bader Ginsburg, in her dissent for the court’s four liberal justices, provided some stark examples. A sample: “In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason, was struck down by a federal court in 1987.”

In a second case this week, the Supreme Court seemed to come close to striking down affirmative action in university admissions. It did not, in the end. Instead, it sent the case — a challenge to the use of race in admissions at the University of Texas — back to a lower court, with instructions to do a better job of applying its legal standards. But the tone of the ruling led one leading legal observer to say that “affirmative action is not exactly dead, but the prognosis looks terminal to me.”

It would be great if we lived in a country where race no longer mattered. Unfortunately, we are not there yet — as Paula Deen, of all people, just reminded us. Along with a nationwide discussion of exactly when Deen used the “n-word,” we were treated to a video of her painful recollections — at a New York Times event before a live audience — of how hard it was for her great-grandfather to lose his slaves after the Civil War, and reports on her dreams of a Southern plantation wedding. It was a timely reminder that when it comes to race, in William Faulkner’s words, “The past isn’t dead. It isn’t even past.”

There is a lot of mystery surrounding the order in which the Supreme Court issues its decisions. Even if the rulings this week were a mixed bag, give the court credit for timing. By releasing the marriage equality rulings on the last day of the term, it ended on a powerful note of inclusion and equality.