What Happened

It was quite a week at the Supreme Court and elsewhere.

Supreme Court


One of the first concepts one learns in law school about the way cases are decided in our courts is contained the word “narrowly.” Thus, the Supreme Court’s decisions this week were not much of a surprise to lawyers or laypersons familiar with the judicial process. The Court made a number of narrow decisions. That does not mean they cannot be far-reaching and game-changing. They can be, and when they get as far as the court of last resort, they usually are, at least for those in the areas that are affected. The cases full of great pith and moment, which are usually reserved for the last week of the Court’s term (some cynics might say that’s for the justices to be able to get the hell out of Dodge) are usually those that affect all of us.

Fisher vs. Perry — This lawsuit is what is common termed a “reverse discrimination” case. The plaintiff asked the court to denounce and forbid any race-based preferences in the admissions policy at the University of Texas. The Court declined to go that far, but opined that the strict scrutiny standard required when federal or state governments consider race for any state action was not applied strictly enough here. It sent the case back to the Fifth Circuit Court of Appeals for reconsideration. Perhaps as many as 20 years ago, retired Justice Sandra Day O’Connor opined that such scrutiny may be strict in theory, but fatal in application. That has been generally true. In Fisher, we’ll see.

Shelby County vs. Holder — Section 5 of the Voting Rights Act of 1965 (“VRA”) requires pre-approval by the U.S. Justice Department of even the slightest change in voting procedures in certain covered jurisdictions. Those jurisdictions include some entire states and well as certain counties and smaller one in other states defined by Section 4 of the VRA. The determination of covered jurisdictions was made by their historical use of racially discriminatory laws and procedures. Although voting qualifications and procedures are Constitutionally the purview of each state, the VRA was originally upheld as the “appropriate legislation” power Congress was given by and to enforce the Fifteenth Amendment. A good argument can be made that the VRA came 100 years too late, but sections 4 and 5, which were designed to be temporary, lasted at least 25 years too long. One flaw in the process was that inordinate power was given to career DOJ staffers, quite often ideologues who saw racial discrimination where there was none.

The evil that underscores both of those cases is the persistence of official classification of individuals by race or ethnicity, in the U.S. Census and otherwise. In the wake of the civil rights movement of the 1950s and 60s, the remedial measures of the VRA and affirmative action were necessary where there had been pervasive government–sponsored or supported — racial segregation and discrimination. Keeping such measures in place for so long had become counter-productive. Sections 4 & 5 of the VRA came to treat race, and later “ethnicity” as determinative of community of interest. The effect was to herd minority groups into electoral districts to obtain sufficient numbers to ensure election of an official “who looked like” them. Whether he/she also thought like many I suppose was irrelevant. Affirmative action programs, particularly in higher education and industry, tended to make the abilities and qualifications of black persons, at least, suspect. Whether justified or not, people tend to rely on stereotypes to make everyday decisions. Because of this, affirmative action, except where it specifically and in a narrowly tailored manner was applied a remedy to individuals who had been unfairly treated because of their race or color, has been counterproductive, and tending to perpetuate racial stereotypes.

The Gay Marriage Cases — The result in both cases, like the Shelby County case, showed a certain respect for federalism. One might disagree with many of the federal laws that discriminate against single persons and provide certain benefits to married persons. If Congress bestows that largesse on person on the basis of the marriage relationship, and some states provide for same sex marriages, then federal law should respect a state’s definition of marriage. If one changes their domicile that really doesn’t matter so long as the state of celebration recognizes same sex marriage. The state of domicile, however, would not have to. Different treatment? Yes, but that is what federalism means. Different strokes for different folks in different states, so long a fundamental rights recognized by the Constitution are protected. There may be a fundamental right to privacy and freedom of association, but there is no fundamental right that a state must recognize marriage, at least under current Constitutional jurisprudence.

As far as the California Proposition 8 is concerned, the Court dismissed on the basis of standing, and the merits were not reached. Given that at least three of the left-leaning justices, who typically are not concerned with standing as an issue, were on board, one can speculate justifiably that they would not have liked the result of a merits decision.

My solution is to get the government out of the marriage business. Enact civil union statutes for any couple who wants to commit to each other that define the rights and responsibilities in the absence of an agreement, including those of children born or adopted to that union. Religious or social organizations can sanction those unions if desired and call them marriages. In the eyes of the law, all would be civil unions. The extremes of both sides of this issue might not like this compromise, but of us would.

Adoptive Couple vs. Baby Girl — Not nearly as celebrated as the other cases, but nonetheless significant was the case where the state courts in South Carolina, applying what they believed were the requirements of the federal Indian Child Welfare Act (“ICWA”), allowed a biological father to wrest away a child from adoptive parents. The unmarried mother of the child, with the consent of the aforesaid sperm donor, placed the child for adoption. The child was adopted by a married couple who resided in South Carolina. That family lived together for over a year. The sperm donor, for some reason, had a change of heart and, upon discovering that he had a Cherokee Amerindian ancestor, which under the twisted concept ensconced in that law, made the child 3/256th Cherokee, sued for custody. Applying the ICWA, the South Carolina court awarded it to him, and was affirmed by the South Carolina Supreme Court. The adoptive parents sought review.

The U. S. Supreme Court reversed. In its ruling the Court stated “under the [South Carolina] Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian. As the State Supreme Court read §§1912(d) and (f ), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA.”

The Court was surely correct, but it did not reach what many consider the ultimate question. How on earth can a 3/256th (3 great great great great great grandparents) qualify someone to be a Cherokee Amerindian? This carries the concept of hypodescent (or the “one-drop” rule) to absurd lengths. Our obsession with biological heritage as being determinative of “who one is” is nothing new. It is, of course, racism at the most basic level. In this case, it is a good bet the child has been traumatized by being used as an emotional football for the sperm donor’s self-aggrandizement, aided and abetted by an ill-considered law or the application thereof. The South Carolina courts should be relieved, as this was yet another of the Supreme Court opinions that have show at least a modicum of respect for state sovereignty.

Out of Court
Leaker Edward Snowden remains on the lam; perhaps in Russia. President Obama says he will not indulge in international negotiations to secure the extradition of a “29 year old hacker.” Good for the Pres. If Snowden comes back to the U.S., the government should arrest and try him for espionage. Otherwise, let him go to Ecuador, Cuba, or some other socialist cesspool and find out for himself what paradise really is not. Ignore him and his celebrity will soon wane and few will care.
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