Archive for June 26th, 2013

Court Liberals Court Gays — Strikes Down Section 3 of Defense of Marriage Act (DOMA) — What’s next? Sodomite Shotgun Mandated Marriages Coming Soon? — Defining Democratic Degeneracy Down — Videos

Posted on June 26, 2013. Filed under: American History, Blogroll, Business, Catholic Church, Communications, Constitution, Economics, Federal Government, government spending, history, Language, Law, liberty, Life, Links, Literacy, media, People, Philosophy, Politics, Press, Rants, Raves, Religion, Strategy, Talk Radio, Video, Wealth, Wisdom | Tags: , , , , , , , , , , , , , , , , , , , , , , , |

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Casablanca – As Time Goes By

Marriage Redefinition Sought at SCOTUS Fails, Debate Continues 

Ryan Anderson discusses what the Supreme Court got wrong in its marriage decisions—but why the proponents of same-sex marriage failed to achieve their goal of a court-imposed nationwide redefinition. One thing is clear: the debate about marriage will continue, now more than ever.

The morning after two important—and troubling—Supreme Court decisions in the Proposition 8 and Defense of Marriage Act (DOMA) cases, here’s the lay of the land. The important takeaway: The marriage debate is every bit as live today as it was yesterday morning…and that means it’s time to redouble our efforts to stand for marriage across America. Some key numbers following the decisions:

50        The number of states whose marriage laws remain the same after the Court’s marriage decisions.

38        The number of states with laws defining marriage as the union of a man and a woman. That includes California, where the scope of today’s Prop 8 decision beyond the specific plaintiffs will be the subject of ongoing debate and, most likely, further litigation.

12        The number of states that can now force the federal government to recognize their redefinition of marriage. The Court struck Section 3 of DOMA, which means that it must recognize same-sex marriages in states that redefine marriage.

1          The number of sections of the Defense of Marriage Act struck down yesterday (Section 3). Section 2, which ensures that no state will be forced to recognize another state’s redefinition of marriage, is still law.

0          The number of states forced to recognize other states’ redefinition of marriage.

The important news you may not be hearing is that the U.S. Supreme Court did not redefine marriage across the nation. That means the debate about marriage will continue. States are free to uphold policies recognizing that marriage is the union of a man and a woman, so that children have a mother and a father.

States will lead the way even as we work to restore clear marriage policy at the federal level. And in the states, support for marriage as the union of a man and a woman remains strong.

Still, the Court should have respected the authority of California citizens and Congress.

On DOMA, the Court did not respect Congress’s authority to define marriage for the purposes of federal programs and benefits. The Court got federalism wrong.

On Proposition 8, the citizens of California who voted twice to pass Prop 8 should have been able to count on their Governor and Attorney General to defend the state’s constitution. That’s what democratic self-government is all about.

Now more than ever, we need to make it clear why marriage as the union of a man and a woman matters—for children, for civil society, and for limited government. As citizens, we all need to be prepared to make the case for marriage. That’s why we at Heritage have worked with allies to produce a booklet called “What You Need to Know about Marriage.” Download your free copy at TheMarriageFacts.com.

http://blog.heritage.org/2013/06/27/morning-bell-the-supreme-courts-marriage-decisions-by-the-numbers/

Jay Sekulow Spoke with Glenn Beck: SCOTUS Decision on DOMA & Prop 8

Breaking Down the Court’s Prop 8 and Doma Rulings | Supreme Court Same-Sex Marriage Ruling

Wall Street Journal Legal Editor Ashby Jones breaks down the Supreme Court’s Prop 8 and Doma rulings, and what the decisions could mean for same-sex marriage going forward.

Supreme Court strikes down key part of DOMA, dismisses Prop 8 case

America : Supreme Court shoots down DOMA and Prop 8 within the U.S. (Jun 26, 2013)

Rush Limbaugh: Scalia was right when he warned repeal of sodomy laws would lead to gay marriage

Glenn Beck and Rand Paul DOMA Reaction: Gay Marriage Rulings Will Lead To Polygamy, Zoophilia

The Five Reacts To Supreme Court’s DOMA And Prop 8 Rulings  ‘This Is A Huge Conservative Victory’

Dr. Jeffress Discusses the SCOTUS DOMA Decision on The O’Reilly Factor (6/26/13)

DOMA Struck DOWN – Justice Scalia’s Hypocritical Rage Quotes

Andrew Sullivan: Gay People Like Glenn Greenwald Can Now Come Back, and Jesus Was Thrilled Today

Sally Kohn Battles Fox Panelist Over SCOTUS Ruling: How Does My Right To Marry Affect You At All?

Fox News contributor Sally Kohn today reacted to the Supreme Court ruling that her partnership and the unions of many other people across the country deserve equal protection under the law. She said that this is the latest step in the United States’ attempts over history in “striving towards making a more perfect union,” adding that in the United States, you can’t just pass a law “solely for the purpose of discriminating.”

Kohn thought it was smart for the Supreme Court to lean on the states rights argument, which she said conservatives would be cheering had this been literally any other political issue. Fellow panelist Ryan Anderson found it contradictory that the Supreme Court would take make such a significant ruling for states rights in the DOMA case, yet dismissed the California Proposition 8 case in which the people actually voted to decide how to define marriage in their state. He argued that the government’s business in getting involved in marriage is to promote marriages that can produce children, hence the definition of marriage being one man and one woman.

Kohn told Anderson that he can make “excuses” but the fact is laws passed just to discriminate are wrong. She also pointed out that the ruling is also significant due to the marriage benefits that gay couples can now get. Anderson shot back that the Supreme Court didn’t exactly say that state bans against gay marriage are unconstitutional, and reaffirmed that the California ban “tells the truth about marriage.” Kohn said, “I’m a little confused as to how my right to marry affects Ryan at all, unless we’re getting married, Ryan.”

Headline: Supreme Court rules DOMA is unconstitutional

Watch Rep. Bachmann and Others Speak Against DOMA Ruling

Moments After DOMA Ruling – Gay Activists Promise to Push Gay Marriage Nation-Wide

Supreme Court Strikes Down DOMA | WSJ WorldStream | Supreme Court DOMA Ruling

Mixed Reactions to Supreme Court Decisions

Supreme Court strikes down DOMA

In a landmark decision, the Supreme Court strikes down a federal provision denying benefits to legally married couples. For more CNN videos, visit our site at http://www.cnn.com/video/

Edith Windsor, who filed the original case that could upend the Defense of Marriage Act, says just getting the case to this point is a kind of victory.

“We’ve made a huge step forward and a huge difference in how people look at us,” she said. “And so, it’ll happen. Another year if not now.”

It was the death of Windsor’s life partner, Thea Clara Spyer, that led to the case.

Theirs was not a fleeting romance — the women were together 42 years sharing ups and downs, laughs and tears. They also shared what they’d earned together, including from Windsor’s job as a programmer with IBM and Spyer’s work as a psychologist.

FRANK SINATRA – STRANGERS IN THE NIGHT – LIVE

Frank Sinatra – My Way (Live in London 1971)

The Supreme Court struck down part of DOMA. Here’s what you need to know

By Dylan Matthews

The Supreme Court today struck down a key part of the Defense of Marriage Act, the 1996 law signed by President Clinton that defined marriage as between a man and a woman for the purpose of federal law.

The decision was 5-4, with the majority opinion written by Justice Anthony Kennedy — who also wrote the court’s historic gay rights decisions in Romer v. Evans and Lawrence v. Texas. Justices Antonin Scalia, Samuel Alito, and John Roberts all filed dissents. Justice Clarence Thomas joined Scalia’s dissent, and joined Alito’s in part, while Roberts joined Scalia’s in part. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg joined Kennedy’s majority opinion.

Here’s what you need to know.

What was the actual case about?

United States v. Windsor concerns Edith Windsor, who was widowed when her wife Thea Spyer died in 2009. Windsor and Spyer were married in 2007 in Canada after being partners for 40 years. Windsor was forced to pay $363,053 in estate tax on Spyer’s estate, which she argues she would not have to pay if she had been Spyer’s husband. Thus, she claims, the Defense of Marriage Act, which prevents her from being considered Spyer’s spouse for the purposes of federal taxes, literally cost her $363,053.

How did it get here?

The Obama administration has declined to defend DOMA, and so the Bipartisan Legal Advisory Group (BLAG), a standing organization in Congress, took over the law’s defense at the instruction of House Speaker John Boehner (R-OH). The U.S. District Court for the Southern District of New York ruled in June that DOMA’s definition of marriage as between a man and a woman lacked a rational basis, and ordered damages of $363,053 paid to Windsor. In October, the Second Circuit Court of Appeals concurred, with a panel ruling 2-1 for Windsor. Then the Supreme Court considered it. Here are the arguments in the case:

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/26/the-supreme-court-struck-down-doma-heres-what-you-need-to-know/

What issues did the Court have to decide on?\

Three. The first was the equal protection issue. The second was whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third was whether BLAG would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson argues that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).

Justice Kennedy’s ruling held that the court had jurisdiction in the case, effectively ruling that there was a real controversy and that BLAG had standing to defend the law. His ruling was solely based on his judgment that DOMA violates the equal protection clause.

What does this mean for gay couples?

It depends on what area you’re talking about. “What section 3 of DOMA does is that it performs a find and replace of every instance of ‘spouse’ or ‘husband’ or ‘wife’ appears and changes it so that it’s “opposite sex husband” or ‘opposite sex wife’,” says Rita Lin, a partner at Morrison and Foerster in San Francisco who argued Golinski v. United States Office of Personnel Management, another DOMA case. “The effect is going to vary based on which of the thousand-plus statutes or regulations are affected.”

There are some clear-cut cases. It seems pretty clear that legally married same-sex couples where one member is employed by the federal government are entitled to spousal benefits, just the same as any other married couple. For other legally married couples who don’t live in states where same-sex marriage is recognized, there’s some question as to whether the “state of celebration” or “state of residence” matters. Usually, the former is the standard used, meaning a marriage is valid if it’s valid in the state it was celebrated. That would mean most legally married same-sex couples, regardless of where they live, are entitled to spousal benefits.

Other areas, like tax law, may require additional rule-making before same-sex couples are treated equally. “Some operate just based on policy, without getting into a regulation or statute, so those can be modified very quickly,” Tara Borelli, an attorney at Lambda Legal who was also a counsel in Golinski. ”Others require rule-making.” And others require statutory changes. Borelli notes that Social Security will probably have to be changed by Congress for same-sex couples to be treated equally.

This does open the door for  bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/26/the-supreme-court-struck-down-doma-heres-what-you-need-to-know/

Background Articles and Videos

Flagrant Conduct: The Story of Lawrence v. Texas (Dale Carpenter)

n 2003 the Supreme Court struck down America’s sodomy laws in the case of Lawrence v. Texas. In Flagrant Conduct, a work nine years in the making, Dale Carpenter challenges what we thought we knew about the case. Drawing on dozens of interviews, he analyzes the claims of virtually every person involved. Carpenter first introduces us to the interracial defendants themselves, who were hardly prepared “for the strike of lightning” that would upend their lives, and then to the Harris County arresting officers. He charts not only the careful legal strategy that Lambda Legal attorneys adopted to make the case compatible to a conservative Supreme Court but also the miscalculations of the Houston prosecutors who assumed that the nation’s extant sodomy laws would be upheld. Dale Carpenter clerked for Judge Edith H. Jones of the Fifth Circuit Court of Appeals and blogs frequently for The Volokh Conspiracy. Charles Lane is the author of The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.

Geoffrey R. Stone of the University of Chicago Law School says, “Dale Carpenter’s Flagrant Conduct does for Lawrence v. Texas what Richard Kluger’s Simple Justice and Anthony Lewis’s Gideon’s Trumpet did for Brown v. Board of Education and Gideon v. Wainwright. It tells the story of a profoundly dramatic and important Supreme Court decision in a way that brings to life the stakes, the participants, the justices, and the drama of the constitutional controversy. It is a landmark achievement.”

Lawrence Vs. Texas (2003) – Opinion (Kennedy) – Supreme Court Of The United Sates Of America

Justice Kennedy delivering the opinion of the United States Supreme Court in the case John Geddes Lawrence and Tyron Garner v Texas 02-102 (2003). The court found that a Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment. Kennedy is joined by Stevens, Souter, Ginsburg, Breyer, while O’Connor wrote a separate concurrence. Justice Scalia wrote a dissent, which is joined by Rehnquist, Thomas. Thomas also wrote a separate dissenting opinion.

Lawrence Vs. Texas (2003) – Dissent (Scalia) – Supreme Court Of The United Sates Of America

Lawrence v. Texas

Lawrence v. Texas, 539 U.S. 558 (2003),[1] is a landmark decision by the United States Supreme Court. In the 6–3 ruling, the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state and territory. The Court overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.

Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.[2]

The case attracted much public attention, and a large number of amici curiae (“friends of the court”) briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.

Background

Legal punishments for sodomy often included heavy fines and/or life prison sentences, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy.[citation needed] In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a “sexual pervert”.[citation needed] As late as 1970, Connecticut denied a driver’s license to a man for being an “admitted homosexual”.[3]

As of 1960, every state had an anti-sodomy law.[4] In 1961, the American Law Institute’s Model Penal Code advocated repealing sodomy laws as they applied to private, adult, consensual behavior.[5] Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws.[6] Most judges were largely unsympathetic to the substantive due process claims raised.

In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold for the first time the Supreme Court recognized, at least for married couples, a right to privacy,[7] drawing on the Fourth Amendment’s protection of private homes from searches and seizures without a warrant based on probable cause, the Fifth Amendment’s guarantee of due process of law, and the Ninth Amendment’s assurance that rights not specified in the Constitution are “retained by the people”. Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.

In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge in a 5 to 4 decision. Justice Byron White’s majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a “right” to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units.[8] He then reasoned that because state intrusions are equally burdensome on an individual’s personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently.[9]

By the time of the Lawrence decision, nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma and Missouri—prohibited same-sex couples from engaging in anal and oral sex.[4]

History

Arrest of Lawrence and Garner

On September 17, 1998, John Lawrence,[10][11] a gay 55-year-old medical technologist, was hosting two gay acquaintances, Tyron Garner,[12] age 31, and Robert Eubanks,[13] 40, at his apartment on the outskirts of Houston. Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had a tempestuous on-again off-again romantic relationship since 1990. Lacking transportation home, the couple were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported “a black male going crazy with a gun” at Lawrence’s apartment.[14]

Four Harris County sheriff’s deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and in later determining what charges to bring, if any. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence did not acquiesce to the police. Instead he repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and then to arrest them or not. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check to the statutes to be certain they covered sexual activity inside a residence. He was told that Texas’s anti-sodomy statute, the “Homosexual Conduct” law, made it a Class C misdemeanor if someone “engages in deviate sexual intercourse with another individual of the same sex”.[15] The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.[16]

Quinn decided to charge Lawrence and Garner with having “deviate sex” and to arrest them. In the opinion of the author of the most detailed account of the arrests, Quinn’s decision was likely driven by Lawrence’s verbal abuse, along with some combination of Quinn’s negative response to homosexuality, the fact that Lawrence was white and Garner was black, and the false gun report.[17] In the separate arrest reports he filed for each, he wrote that he had seen the arrestee “engaged in deviate sexual conduct namely, anal sex, with another man”.[17] Lawrence and Garner were held in jail overnight. At a hearing the next day, they pled not guilty to a charge of “homosexual conduct”. They were released toward midnight.[18] Eubanks pled no contest to charges of filing a false police report. He was sentenced to 30 days in jail but released early.[19]

Prosecution and appeals

The gay rights advocates from Lambda Legal litigating the case convinced Lawrence and Garner not to contest the charges despite their innocence and to plead no contest instead.[20] On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial. Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.[21]

To appeal, Lawrence and Garner needed to have their cases tried in Texas Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court’s decision in Bowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was “wrongly decided”.[22] On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pled “no contest”. Ross fined them $200 each, the amount agreed upon in advance by both sides.[23]

A three-judge panel of the Texas Fourteenth Court of Appeals heard the case on November 3, 1999.[24] Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented.[25] The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel’s decision and upheld the law’s constitutionality 7–2, denying both the substantive due process and equal protection arguments.[26] Attorneys for Lawrence and Garner asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year’s delay, on April 17, 2002, that request was denied. Lambda Legal’s Harlow called that decision “a major abdication of judicial responsibility”. Bill Delmore, the Harris County prosecutor who argued the case, called the judges “big chickens” and said: “They have a history of avoiding the hot potato cases if they can.”[27]

Consideration by the Supreme Court

In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:[28]

1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?3. Whether Bowers v. Hardwick should be overruled?

On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations.[29] An op-ed in support by former Sen. Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument.[30] The attorneys for Texas did not control the amicus briefs submitted in support of their position. Two were by noteworthy scholars, Jay Alan Sekulow and Robert P. George, while the remainder represented religious and social conservatism. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had “severe physical, emotional, psychological, and spiritual consequences”.[31]

At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs.[32] Texas Attorney General John Cornyn, then a candidate for the U.S. Senate, refused to have his office take the case. Charles A. Rosenthal, District Attorney of Harris County, represented the state.[33] His performance was later described as “the worst oral argument in years”, but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.[34][35]

On April 7, 2003, Sen. Rick Santorum referred to the oral arguments in Lawrence when asked his views on homosexuality:

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold[36]

Decision

On June 26, 2003, the Supreme Court released its 6–3 decision striking down the Texas statute. Five justices held it violated due process guarantees, and a sixth, Sandra Day O’Connor, held it violated equal protection guarantees. The opinion overruled Bowers v. Hardwick and implicitly invalidated similar sodomy statutes in 13 other states.

Majority opinion

Justice Anthony Kennedy wrote the majority opinion which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. He wrote: “The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Kennedy reviewed the assumption the court made in Bowers, using the words of Chief Justice Burger’s concurring opinion in that case, that “Condemnation of [homosexual practices] is firmly rooted in Judeao-Christian moral and ethical standards.” He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code’s recommendations since 1955, the Wolfenden Report of 1963, and a 1981 decision of the European Court of Human Rights.

He endorsed the views Justice Stevens had outlined in his dissent in Bowers and wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The majority decision also held that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections. Holding that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”, the court struck down the anti-sodomy law as unconstitutional.

Kennedy underscored the decision’s focus on consensual adult sexual conduct in a private setting:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[37]

O’Connor’s concurrence

Justice Sandra Day O’Connor filed a concurring opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed the court’s invocation of due process guarantees of liberty in this context. Rather than including sexuality under protected liberty, she used the equal protection argument and struck down the law because it was directed at one group. O’Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because “democratic society” would not tolerate it for long. O’Connor noted that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to “preserv[e] the traditional institution of marriage” and not simply based on the state’s dislike of homosexual persons.

Scalia’s dissent

Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court’s decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered.[38] He noted that the same rationale used to overturn Bowers[39] could have been used to overturn Roe v. Wade, which the Justices in the majority in Lawrence had recently upheld in Planned Parenthood v. Casey. Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey.[40]

Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.[41]

He wrote that:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

He cited the majority opinion’s concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:

So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.

He continued: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” The majority’s “invention of a brand-new ‘constitutional right'”, he wrote, showed it was “impatient of democratic change”.

Thomas’s dissent

Justice Thomas wrote in a separate dissent that the law the Court struck down was “uncommonly silly”, a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut, but he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas legislature he would vote to repeal the law.

Reactions

President Bush’s press secretary Ari Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, Bush had opposed repeal of the Texas sodomy provision, which he called a “symbolic gesture of traditional values”.[42] After quoting Fleischer calling it “a state matter”, Linda Greenhouse, writing in The New York Times, commented: “In fact, the decision today…took what had been a state-by-state matter and pronounced a binding national constitutional principle.”[43]

The Lambda Legal’s lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that “the court admitted its mistake in 1986, admitted it had been wrong then…and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights.”[44] Prof. Laurence Tribe has written that Lawrence “may well be remembered as the Brown v. Board of Education of gay and lesbian America”.[45] Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having “changed the status of homosexual acts and changed a previous ruling of the Supreme Court… this was a drastic rewrite”.[46]

Peter LaBarbera, a senior policy analyst of the anti-LGBT group Culture and Family Institute, later president of the anti-LGBT organization Americans for Truth about Homosexuality, said that the end result of Lawrence v. Texas was “like the Roe v. Wade of the homosexual issue”.[47][48] The United States Conference of Catholic Bishops called the decision “deplorable”.[49]

Columbia Law Prof. Katherine M. Franke, in an analysis of Lawrence that appeared in June 2004, criticized its “domesticated” conception of liberty that failed to present “a robust concept of freedom”. She contrasted it with the language of Planned Parenthood v. Casey, which discussed “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. Lawrence‘s emphasis on geographical privacy, in her view, described a circumscribed form of liberty and failed to develop the court’s evolving assertion of the right to autonomy and personal independence. Its assumption, based on nothing in the record, that Lawrence and Garner were in a relationship and had a personal bond leaves open the court’s view of their right to express their sexuality or fulfill erotic desires. She noted how a Kansas court in Limon v. Kansas read Lawrence to allow far greater punishment for engaging in same-sex activity with a minor than different-sex activity with a minor. She terms this “the legal enforcement of heteronormative preferences”.[50] The decision in Limon was later reversed, in part on the basis of Lawrence.[51]

Subsequent cases

A few months later, on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Though deciding the case on the basis of the state constitution, Chief Justice Margaret Marshall quoted Lawrence in its second paragraph: “Our obligation is to define the liberty of all, not to mandate our own moral code.”[52]

Upon rehearing Williams v. Pryor after Lawrence, the Eleventh Circuit Court of Appeals upheld Alabama’s ban on the sale of sex toys.[53] Facing comparable facts, the Fifth Circuit struck down Texas’s sex toy ban holding that “morality is an insufficient justification for a statute” and “interests in ‘public morality’ cannot constitutionally sustain the statute after Lawrence“.[54]

Lawrence invalidated age of consent laws that differed based on sexual orientation. The day after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 “Romeo and Juliet” law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior, but explicitly excludes same-sex conduct from the sentence reduction.[55] In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court’s ruling on October 21, 2005,[56] in State v. Limon.[57]

Subsequent federal and state case law has been quite explicit in limiting the scope of Lawrence and upholding traditional state regulations on marriage, expressly allowing a marriage-procreation link. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Hernandez v Robles (7 NY3d 338 2005).) In Muth v. Frank, 412 F.3d 808 (7th Cir. 2005), the Seventh Circuit declined to extend Lawrence to cases of consensual adult incest, although it did say that Lawrence v. Texas was “a new substantive rule and […] thus retroactive”. The case was distinguished because parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring.

In Martin v. Ziherl, the Supreme Court of Virginia ruled the state’s fornication law unconstitutional.[58] In the Holm case a polygamist attempted without success to use Lawrence to overturn Utah’s laws banning these polygamous relationships. The Supreme Court refused to hear his plea.[59] The Connecticut Supreme Court rejected an argument based on Lawrence that a teacher had a constitutional right to engage in sexual activity with his female students.[60][61]

The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has ruled that Lawrence applies to Article 125 of the Uniform Code of Military Justice, the article banning sodomy. It has also twice upheld prosecutions under Article 125 when applied as necessary to preserve good order and discipline in the armed forces.[62][63]

Judge Vaughn Walker cited Scalia’s dissent in his decision in Perry v. Brown that found California’s Proposition 8 banning same-sex marriage unconstitutional.[64]

The level of scrutiny applied in Lawrence

Justice Scalia and others have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged “fundamental right”. He wrote the majority, instead, applied “an unheard-of form of rational basis review that will have far-reaching implications beyond this case”.[65]

Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either “fundamental” or “not fundamental” as too restrictive.[66] Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government’s action has not been arbitrary.[67] Justice Stevens has repeatedly criticized tiered scrutiny and prefers a more active judicial balancing test based on reasonability.[68]

Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny.[69] In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.[70]

http://en.wikipedia.org/wiki/Lawrence_v._Texas

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Conservative Court Calls Congress Cowards: Voting Rights Act of 1965, Section 4 (b) and Its formula for Requiring Preclearance Struck Down as Unconstitutional –Videos

Posted on June 26, 2013. Filed under: American History, Blogroll, College, Communications, Constitution, Crime, Culture, Demographics, Economics, Education, Federal Government, Federal Government Budget, Fiscal Policy, government spending, history, Law, liberty, Life, Links, Literacy, media, People, Philosophy, Politics, Press, Rants, Raves, Talk Radio, Unemployment, Video, Wealth, Wisdom | Tags: , , , , , , , , , , , , , |

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The Band – Night They Drove Old Dixie Down

Judge Napolitano ~ Supreme Court Strikes Down Key Provision Of Voting Rights Law

Voting Rights Act Takes Hit by Supreme Court – 6/25/2013

The Supreme Court on Tuesday struck down a section of the Voting Rights Act, weakening a tool the federal government has used for nearly five decades to block discriminatory voting laws.

In a five-to-four ruling, the court ruled that Section 4 of the Voting Rights Act is unconstitutional. That section of the landmark 1965 law provides the formula for determining which states must have any changes to their voting laws pre-approved by the Justice Department’s civil rights division or the D.C. federal court. Nine states are required to get pre-clearance, as are certain jurisdictions in seven other states.

Chief Justice John Roberts wrote for the majority that Section 4 is unconstitutional because the standards by which states are judged are “based on decades-old data and eradicated practices.”

“Nearly 50 years later, things have changed dramatically,” Roberts wrote. “The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased [Section 5’s] restrictions or narrowed the scope of [Section 4’s] coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.”

The court could have made a much broader ruling by striking down Section 5, which dictates that those states must get pre-clearance. However, the court decided that the Justice Department still has a role in overseeing voting laws.

Nevertheless, civil rights advocates called the ruling a huge blow to democracy.

“The Supreme Court has failed minority voters today,” Sherrilyn Ifill of the NAACP Legal Defense and Education Fund said Tuesday outside of the court.

The ruling underscores the Supreme Court’s lawmaking powers, challenging Congress’ overwhelmingly bipartisan decision in 2006 to renew the Voting Rights Act for another 25 years. Ifill pointed out that the court renewed the law after holding 52 hearings over nine months and amassing 15,000 pages of evidence of discrimination — including more than 600 objections to voting based on intentional discrimination in the jurisdictions covered by Section 4.

It’s now up to Congress to change the coverage rules so that Section 5 — the section requiring pre-clearance of voting laws in certain states — can continue to be enforced.

“The ball has been thrown not only in Congress’ court, but in our court,” Ifill said, calling on the public to mobilize behind an update to the law.

CLASH Sean Hannity, Juan Williams, Erik Rush over Congress fixing Voting Rights Act

Howard Fineman: Voting Rights ‘Preclearance Is Dead Unless Congress Acts Soon’

The Huffington Post Editorial Director Howard Fineman delivered a grim prognosis relating to the sustainability of the Voting Rights Act of 1965 after the Supreme Court struck from the law provisions relating to the regions of the United States which must submit reapportionment proposals to the Justice Department for preclearance. “Preclearance is dead,” Fineman said, “unless Congress acts soon.”

NBC News reporter Luke Russert began by asking Fineman how today’s ruling on the VRA impacts Democratic plans to expand into traditionally Republican states in the Deep South and Southwest.

“I think a lot is going to depend on how we come to look at discrimination and voting now,” Fineman began. “I think the way to approach this is for the Democrats to say, ‘Look, let’s move forward here.'”

RELATED: If GOP Approaches New Voting Rights Act Like They Did Immigration Reform, The Party Is Doomed

“This is an opportunity to renew for the next century the spirit of the Civil Rights Acts of the ’60s,” Fineman continued. “At the very least, what they’re going to have to do, is raise a whole lot of money for a whole lot of lawsuits all over the country.”

“I think preclearance is dead unless Congress acts soon,” he concluded. “And that’s going to mean you’re going to have to have vigilant people filing lawsuits all over the country, seeking injunctions after the fact trying to make sure the voting procedures are just.”

BREAKING NEWS Supreme Court Throws Out Voting Rights Provision

The divided U.S. Supreme Court threw out a core part of the 1965 Voting Rights Act, rolling back a landmark law that opened the polls to millions of southern blacks. The justices, voting 5-4, struck down the law’s formula for determining which states must get federal approval before changing their election rules. The ruling all but invalidates the section preclearance requirement, leaving it without force unless Congress can enact a new method for determining which jurisdictions are covered.

Part of Voting Rights Act Unconstitutional

The Five Clash w/ Beckel on Voting Rights: Supreme Court Has Gutted Civil Rights And It’s Just Wrong

Al Sharpton: The Supreme Court ‘Just Cancelled The Dream’ Of MLK Jr. In Voting Rights Decision

Voting Rights Act Section 4 Struck Down By Supreme Court ~ 6. 25. 2013

Scalia: ‘Racial Entitlement’ in Voting Rights Act

SCOTUS Conservatives Signal Intention To Dismantle Voting Rights Act

Supreme Courts Rules Struck Down Of Voting Rights Act

Joan Baez – The Night They Drove Old Dixie Down

Voting Rights Act of 1965

The Voting Rights Act of 1965 (42 U.S.C. §§ 1973–1973aa-6)[1] is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S.[2]

Echoing the language of the 15th Amendment, the Act prohibits states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”[3] Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise.[2] The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.[2][4]

The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called “covered jurisdictions”) could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance.[5] These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a “device” to limit voting and in which less than 50 percent of the population was registered to vote in 1964.[5] The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.[6]

The Act is widely considered a landmark in civil-rights legislation,[7] though some of its provisions have sparked political controversy. During the debate over the 2006 extension, some Republican members of Congress objected to renewing the preclearance requirement (the Act’s primary enforcement provision), arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate.[8] Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots.[9] Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact.[10]

In the 2013 case Shelby County v. Holder, the United States Supreme Court struck down Section 4(b) of the Act and its formula for requiring preclearance as unconstitutional based on current conditions, saying it was rational and needed at the time it was enacted but is no longer necessary. Preclearance itself was not struck down, but it currently has no effect unless or until Congress passes a new formula.[11]

Background

The first page of the Voting Rights Act

Further information: Disfranchisement after the Civil War

The 13th Amendment, ratified in 1865 after the Civil War, abolished and prohibited slavery and secured a minimal degree of citizenship to former slaves. The 14th Amendment, ratified in 1868, granted citizenship to all people “born or naturalized in the United States,” and included the due process and equal protection clauses. This amendment did not explicitly prohibit vote discrimination on racial grounds.

The 15th Amendment, ratified on February 3, 1870, provided that, “The right of U.S. citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”.[12] Additionally under the Amendment, the Congress was given the authority to enforce those rights and regulate the voting process. Soon after the end of Reconstruction, starting in the 1870s, Southern Democratic legislators found other means to deny the vote to blacks, through violence, intimidation, and Jim Crow laws. From 1890 to 1908, 10 Southern states wrote new constitutions with provisions that included literacy tests, poll taxes, and grandfather clauses that permitted otherwise disqualified voters whose grandfathers voted (thus allowing some white illiterates to vote), some with the aim and effect of re-imposing racially motivated restrictions on the voting process that disenfranchised blacks. State provisions applied to all voters and were upheld by the Supreme Court in early litigation, from 1875 (United States v. Cruikshank) through 1904. During the early 20th century, the Supreme Court began to find such provisions unconstitutional in litigation of cases brought by African Americans and poor whites. States reacted rapidly in devising new legislation to continue disfranchisement of most blacks and many poor whites. Although there were numerous court cases brought to the Supreme Court, through the 1960s, Southern states effectively disfranchised most blacks.

In 1909, the National Association for the Advancement of Colored People (NAACP) was created with the mission to promote blacks’ civil rights, including to “secure for them impartial suffrage.” The NAACP’s success was limited: although they did achieve important judicial rulings by the Supreme Court and some legislative successes, Southern legislators quickly devised alternate ways to keep many southern blacks disfranchised through the early 1960s.

Following the 1964 election, a variety of civil rights organizations banded together to push for the passage of legislation that would ensure black voting rights once and for all. The campaign to bring about federal intervention to prevent discrimination in voting culminated in the voting rights protests in Selma, Alabama, and the famous Selma to Montgomery marches. Demonstrations also brought out white violence, and Jimmie Lee Jackson, James Reeb, and Viola Liuzzo were murdered. President Lyndon B. Johnson, in a dramatic joint-session address, called upon Congress to enact a strong voting rights bill. Johnson’s administration drafted a bill intended to enforce the 14th and 15th Amendments, aiming to eliminate various previously legal strategies to prevent blacks and other minorities from voting.

Legislative history

The Act was sent to Congress by President Johnson on March 17, 1965. The bill passed the Senate on May 26, 1965 (after a successful cloture vote on March 23), by a vote of seventy-seven to nineteen. The House was slower to give its approval. After five weeks of debate, it was finally passed on July 9. After differences between the two bills were resolved in conference, the House passed the Conference Report on August 3, the Senate on August 4. On August 6, President Johnson signed the Act into law with Martin Luther King, Jr., Rosa Parks, and other civil rights leaders in attendance.

Vote count

President Johnson, Martin Luther King, Jr. and Rosa Parks at the signing of the Voting Rights Act on August 6, 1965.

The two numbers in each line of this list refer to the number of representatives voting in favor and against the act, respectively.

Senate: 77–19

  • Democrats: 47–17 (73%-27%)
  • Republicans: 30–2 (94%-6%)

House: 333–85

  • Democrats: 221–61 (78%-22%)
  • Republicans: 112–24 (82%-18%)

Conference Report:

Senate: 79–18

  • Democrats: 49–17 (four Southern Democrats voted in favor: Albert Gore, Sr., Ross Bass, George Smathers and Ralph Yarborough).
  • Republicans: 30–1 (the lone nay was Strom Thurmond; John Tower who did not vote was paired as a nay vote with Eugene McCarthy who would have voted in favor.)

House: 328–74

  • Democrats: 217–54
  • Republicans: 111–20

Provisions

Section 2

Final page of the Voting Rights Act, signed by President Johnson, the President of the Senate, and the Speaker of the House

Section 2 contains a general prohibition on voting discrimination, enforced through federal district court litigation. Congress amended this section in 1982, prohibiting any voting practice or procedure that has a discriminatory result. The 1982 amendment provided that proof of intentional discrimination is not required. The provision focused instead on whether the electoral processes are equally accessible to minority voters.[13] This section is permanent and does not require renewal.

On March 9, 2009, the U.S. Supreme Court ruled in Bartlett v. Strickland that the Voting Rights Act does not require governments to draw district lines favorable to minority candidates when the district has minorities as less than half of the population.[14]

Section 4

The central component to Section 4 of the Act is a formula for determining which jurisdictions will be subject to the preclearance conditions of Section 5. As originally enacted, the first portion of the formula was whether, as of November 1, 1964, the jurisdiction used some form of “test or device” to restrict the opportunity to register and vote (such as a literacy test or a character reference). The second portion was a check of whether less than half of all eligible citizens were registered to vote on November 1, 1964, or that half of all eligible citizens voted in the presidential election of November 1964.[15]

Subsequent revisions of the law moved the date where both portions of the formula were gauged ahead to be as of November 1, 1968 and, later, as of November 1, 1972. Revisions in 1982 and 2006 extended the protections of the law but did not change the nature of the formula itself.

Smaller components of Section 4 include protections for voters with limited English skills to ensure they are able to register and vote as well as receive materials on the electoral process in a language which they will understand.[16]

In a decision on the Shelby County v. Holder case released on June 25, 2013, the Supreme Court of the United States ruled Section 4(b) unconstitutional.[17]

Section 5

Preclearance

Section 5 of the Act requires that the United States Department of Justice, through an administrative procedure, or a three-judge panel of the United States District Court for the District of Columbia, through a declaratory judgment action “preclear” any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting…” in any “covered jurisdiction.”[5] The Supreme Court gave a broad interpretation to the words “any voting qualification or prerequisite to voting” in Allen v. State Board of Election, 393 U.S. 544 (1969). A covered jurisdiction that seeks to obtain Section 5 Preclearance, either from the United States Attorney General or the United States District Court for the District of Columbia, must demonstrate that a proposed voting change does not have the purpose and will not have the effect of discriminating based on race or color. In some cases, they must also show that the proposed change does not have the purpose or effect of discriminating against a “language minority group.” Membership in a language minority group includes “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” The burden of proof under current Section 5 jurisprudence is on the covered jurisdiction to establish that the proposed change does not have a retrogressive purpose.[18]

Covered jurisdictions may not implement voting changes without federal preclearance. The Justice Department has 60 days to respond to a request for a voting change. If the Justice Department or federal court rejects a request for Preclearance, the jurisdiction may continue the prior voting practice or may adopt a substitute and seek Preclearance for it. If the jurisdiction implements a voting change before the Justice Department denies Preclearance in contravention of the Act, the jurisdiction must return to the pre-existing practice or enact a different change.

Those states that had less than 50 percent of the voting age population registered to vote in 1960 and/or 1964 were covered in the original act. In addition, some counties and towns that have been found in violation of section 2 have been added. Some cities and counties in Virginia and New Hampshire (see below) have since been found no longer to need Preclearance.

In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent.[19] The Commission’s two Democratic members dissented from the report, charging that the Commission had “abandon[ed] the field of battle.”[20]

In the case Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Supreme Court ruled that the district should have greater capability of applying for exemption from this section.[21]

On June 25, 2013, the Supreme Court case of Shelby County v. Holder held that the preclearance coverage formula in Section 4(b) was unconstitutional. Without a valid coverage formula, no jurisdiction is currently required to have any of their voting changes precleared under Section 5.[22]

Bail out

The term “bail out” refers to the process by which covered jurisdictions may seek exemption from Section 5 coverage.[23] In order to bail out, a covered jurisdiction needs to obtain a declaratory judgment from the District Court for the District of Columbia.[5] Eighteen Virginia jurisdictions not covered by Section 5 Preclearance requirements have successfully “bailed out.”[23]

Before August 1984, this process required covered jurisdictions to demonstrate that the voting test that they used immediately before coverage was not used in a discriminatory fashion. The 1982 amendment included two significant changes.[23] First, Congress provided that where a state is covered in its entirety, individual counties in that state may separately bail out. Second, Congress completely redesigned the bailout standard. The post-1984 bailout standard requires that a covered jurisdiction demonstrate nondiscriminatory behavior during the 10 years prior to filing and while the action is pending and that it has taken affirmative steps to improve minority voting opportunities.[23][24]

On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully “bailed out” from Section 5 Preclearance requirements.[25] On November 15, 2012, New Hampshire sued to “bail out” from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed,[26] and prevailed on March 1, 2013.[27]

Bail in

Similar to the bail out procedure, under Section 3 of the VRA there is a “bail in” or ‘pocket trigger’ process by which uncovered jurisdictions found to be a ‘pocket’ of discrimination may be required to seek preclearance under 42 USC 1973a(c).[28] The statutory language is similar to Section 5 oversight but the period of coverage is based on a ruling or consent decree issued by a federal judge. Not used prior to 1975, Section 3 has bailed in the following: [29]

States
  • Arkansas
  • New Mexico
Counties
  • California: Los Angeles
  • Florida: Escambia
  • Nebraska: Thurston
  • New Mexico: Bernalillo
  • South Dakota: Buffalo
  • South Dakota: Charles Mix
Townships
  • Tennessee: Chattanooga

These covered districts are not counted in the Section 5 covered areas below and are not affected by the 2013 Supreme Court decision invalidating the formula in Section 4 for jurisdictions requiring Section 5 preclearance.

Jurisdictions formerly covered

States and counties requiring preclearance under Section 5 of the VRA as of January, 2008. Several small jurisdictions have since bailed out,[30] but the majority of the map remains accurate

The jurisdictions listed below had to have their voting changes precleared before the June 25, 2013, Supreme Court decision Shelby County v. Holder that struck down the formula used to determine who was covered under Section 5 (see 28 C.F.R. part 51 appendix):[32]

States
  • Alabama, except for the city of Pinson[33]
  • Alaska
  • Arizona
  • Georgia, except for the city of Sandy Springs
  • Louisiana
  • Mississippi
  • South Carolina
  • Texas, except for Jefferson County Drainage District Number Seven and Northwest Austin Municipal Utility District Number One
  • Virginia, except for 24 counties (Amherst, Augusta, Bedford, Botetourt, Carroll, Craig, Culpeper, Essex, Frederick, Grayson, Greene, James City, King George, Middlesex, Page, Prince William, Pulaski, Rappahanock, Roanoke, Rockingham, Shenandoah, Washington, Warren, and Wythe) and seven independent cities (Fairfax, Falls Church, Harrisonburg, Manassas Park, Salem, Williamsburg, and Winchester)
Counties
  • California: Kings (except for Alta Irrigation District), Monterey, Yuba (except for Browns Valley Irrigation District and the city of Wheatland)
  • Florida: Collier, Hardee, Hendry, Hillsborough, Monroe
  • New York: Bronx, Kings (Brooklyn), New York (Manhattan)
  • North Carolina: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland (except for the city of Kings Mountain), Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, Wilson
  • South Dakota: Shannon, Todd
Townships
  • Michigan: Clyde Township (Allegan County), Buena Vista Township

Renewal

President George W. Bush signs the reauthorization of the Voting Rights Act in July 2006.

Some temporary sections of the Voting Rights Act (none involving the outlawing of literacy tests, which are permanently banned)[34] have been renewed four times and remain in force. These provisions were renewed in 1970, 1975, 1982, and 2006. In the 1982 action, Congress amended the Act to make some sections (including section 2) permanent while renewing the remainder (including section 5) for 25 years (until July 1, 2007).

In July 2006, 41 years after the Voting Rights Act passed, renewal of the temporary provisions enjoyed bi-partisan support. However, a number of Republican lawmakers acted to amend, delay or defeat renewal of the Act for various reasons. One group of lawmakers led by Georgia congressman Lynn Westmoreland came from some preclearance states, and claimed that it was no longer fair to target their states, given the passage of time since 1965 and the changes their states had made to provide fair elections and voting. Another group of 80 legislators supported an amendment offered by Steve King of Iowa, seeking to strip provisions from the Act that required that translators or multilingual ballots be provided for U.S. citizens who do not speak English.[9] The “King letter” said that providing ballots or interpreters in multiple languages is a costly, unfunded mandate.

The bill to renew the Act was passed by the U.S. House of Representatives on July 13 by a vote of 390-33, with support from Republican House leadership, led by Judiciary Committee Chairman F. James Sensenbrenner, Jr. The U.S. Senate passed the bill 98–0 on July 20.[6] President George W. Bush signed the bill in a morning ceremony on the South Lawn of the White House on July 27, 2006, one year in advance of the 2007 expiration date.[6] This extension renewed the Act for another 25 years.[6] The audience included members of the families of slain civil rights leader Dr. Martin Luther King Jr. and Rosa Parks. Also in attendance were the Revs. Al Sharpton and Jesse Jackson, NAACP Chairman Julian Bond and other prominent African Americans.[6]

Criticisms

Preclearance

Some jurisdictions singled out in the Act for their practices in the 1960s are still required by law to receive federal permission for certain changes to election law or changes in venue.[35] These nine Southern states and mostly Southern counties have complained that the practices banned by the Act disappeared long ago and that further compliance with the mandates of the Act are a costly nuisance and an “unfair stigma” to their towns.[9] As an example of the federal bureaucracy involved, Georgia Rep. Jack Kingston said, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”[9]

Rep. Lynn Westmoreland, R-Ga., said:[36]

Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. We have repented and we have reformed.
— Lynn Westmoreland

Some who think that this federal oversight is discriminatory to these particular states have proposed that the oversight be extended to all 50 states or eliminated entirely.[37]

The 2006 extension of the preclearance procedure was challenged in a lawsuit, Northwest Austin Municipal Utility District No. 1 v. Holder, which was argued before the Supreme Court on April 30, 2009.[38] The lawsuit was brought by a municipal water district in Texas, which elects members to a water board. The district does not register voters, nor has it been accused of discrimination. However, it wished to move the voting location from a private home to a public school; the preclearance procedure required it to seek approval from the Justice Department, because Texas is a covered jurisdiction under Section 5.[39] While the Court did not declare preclearance unconstitutional, the decision redefined the law to allow any political subdivision covered by Section 5 to request exemption from federal review.[40]

During the 2010 election cycle, the state of Florida passed two redistricting amendments to their state constitution that were aimed at preventing future attempts at gerrymandering. Then-governor Charlie Crist, a supporter of both amendments, submitted a request to the DOJ for preclearance, as required by the VRA. In early 2011, Florida’s newly-elected governor Rick Scott, a vocal opponent of these amendments, withdrew the request for preclearance, placing the legal status of the amendments in limbo.[41][42] In particular, only five of Florida’s counties are required to obtain preclearance under the Act, making it unclear what the status of these amendments is in the remaining counties. Proponents of these amendments, both of which passed with greater than 60% voter approval, are accusing Scott’s administration of attempting to “thwart the will of the voters”, by “abusing their power”, and the VRA’s preclearance clause, as a means to defeat these amendments despite overwhelming voter support.[43]

Gerrymandering

Some judges and proponents of racially drawn congressional districts have interpreted Section 5 of the Act as requiring racial gerrymandering in order to ensure minority representation.[44][45] The United States Supreme Court in Miller v. Johnson, 515 U.S. 900 (1995), overturned a 1992 Congressional redistricting plan that had created minority majority districts in Georgia as unconstitutional gerrymander. In Bush v. Vera, the Supreme Court, in a plurality opinion, rejected Texas’s contention that Section 5 required racially-gerrymandered districts.

Constitutionality

On November 9, 2012, the Supreme Court granted certiorari for the case of Shelby County v. Holder originating from Shelby County, Alabama, limited to the question of whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.[46][47]

Oral arguments in Shelby County v. Holder were on February 27, 2013.[48] On June 25, 2013, the Supreme Court struck down, with a 5 to 4 vote, Section 4(b) of Voting Rights Act as unconstitutional while ruling that Section 5 is still permissible.[49][17]

https://en.wikipedia.org/wiki/Voting_Rights_Act_of_1965

Background Articles and Videos

Constitutionality of the Voting Rights Act

Why Today Is Better Than Yesterday

By  John Yoo

Do conservatives have a lot more to be happy about today than yesterday? Yes. Today, the Supreme Court struck down the most onerous element of the Voting Rights Act of 1965 in Shelby County v. Holder. The Act had required several states and localities, almost all in the southern states of the confederacy, to seek permission from the Justice Department or a federal court before changing any electoral procedure. This included the drawing of electoral districts. A separate provision, still in force after Shelby, prohibits individual measures to block access to the ballot on the grounds of race.

The Act made sense in 1965, when Jim Crow still prevented blacks from registering and voting in the South. But it doesn’t anymore. One chart of voting registration by race, found on page 15 of Chief Justice John Roberts’s majority opinion, says it all:

voter_registration_chart

I became a lawyer so I wouldn’t have to work with numbers. But even I get it. After 40 years of the Voting Rights Act, in the original Jim Crow southern states African-American voting registration is actually the same or higher than that of whites. In the last election, African-American turnout was higher than white turnout in five of these six states, and in the sixth state the gap was less than 0.5 percent.

Shelby shows that the Court — albeit by a 5-4 majority — finally came to grips with reality. The Voting Rights Act worked. But it was an extraordinary remedy that intruded on state sovereignty over elections. And like all extraordinary remedies, it was only for unusual times. Those times have come to an end.

But there is one remaining and open question: Will this be bad for Republicans in the South? The Voting Rights Act resulted in an alliance between the NAACP and the Republican party of the 1980s and 1990s to pack minorities into voting districts. This had the effect of ensuring that minorities would be elected to Congress (which the NAACP liked), but diluted minority influence in regular politics by reducing their numbers in all other voting districts (which the Republican party liked). The end of the Voting Rights Act might have the long-term effect of making more congressional seats in the South more competitive and reducing the number of safe seats for members of the congressional black caucus. I would say that that is another victory for the nation wrought by Shelby.

http://www.nationalreview.com/corner/351985/why-today-better-yesterday-john-yoo

June 26, 2013

Voting Rights Act: Winning the Case While Losing the Principle

By Herbert W. Titus and William J. Olson

Yesterday morning, by a vote of five to four, the U.S. Supreme Court ruled that Congress could no longer rely on data of state racial discrimination affecting voting rights which had been assembled in the 1960’s and 1970’s to justify the preclearance requirement of the Voting Rights Act.  Under the preclearance provision (section 4) struck down by the Court, some States and their political subdivisions had been required since 1965 to obtain approval by specified federal authorities in Washington, D.C. before any change in their voting laws can take effect.

Roberts.  Justice Thomas wrote aconcurring opinion.  A dissent was filed by Justice Ginsburg, with Justices Breyer, Sotomayor, and Kagan.

While the Court ruled that section 4 of the Voting Rights Act was unconstitutional, this decision was anything but a principled victory, and, indeed, has opened the door to further legislation that could be every bit as bad, if not worse, than the section 4 which it struck down.

In the very first paragraph of the majority opinion, Chief Justice Roberts acknowledged the extraordinary nature of two provisions of the Voting Rights Act.  Section 5 of the Act requiring “States to obtain federal permission before enacting any law related to voting [is] a drastic departure from basic principles of federalism….”  And, Section 4 of the Act “appl[ying] that requirement only to some States – [is] an equally dramatic departure from the principle that all States enjoy equal sovereignty.”

However extraordinary and unprecedented these two sections were viewed, the Court refused to rule that either section was unconstitutional for that reason.

Rather, the Court decided that the Section 4 formula governing whether a particular State or political subdivision was required to get Section 5 permission was unconstitutional solely because it was based upon outdated voting discrimination data.

On two occasions Justice Roberts cited with apparent approval some of the most lawless words ever written by the Supreme Court — words contained in Justice Warren’s opinion approving the original Voting Rights Act of 1965:  “exceptional conditions can justify legislative measures not otherwise appropriate.”  South Carolina v. Katzenbach, 393 U.S. 301, 309 (1966).

In so ruling, the Court left the door open for Congress to assemble new data to enact into law a new formula whereby some States and their political subdivisions would be singled out for federal preclearance before they would be permitted to make any election law change.  And what might that new formula be?

According to Section 5, left intact by the Court, the 1965 Act, as amended, prohibits:  (i) any voting procedure that has “any discriminatory purpose” — not just one that worsens one’s exercise of the voting privilege, or (ii) any voting change that diminishes the ability of citizens on account of race, or language minority status “to elect their preferred candidates of choice.”  Neither outcome based test was ever envisioned by the Fifteenth Amendment.

The Court invited Congress to replace section 4 with a new and improved version.  Indeed, Chief Justice Roberts wrote:

“Congress may draft another formula based on current conditions.  Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.'”

How refreshing to know that a State’s sovereignty cannot be overridden by the federal government — unless Congress and the President have an important reason to do so.

According to the Court’s decision, then, neither the principle of state sovereignty, nor the principle of state equality, preserved not only by the Tenth Amendment and by the nation’s federal structure dating back to the Declaration of Independence, stands in the way of an affirmative action by Congress that would single out those states that fail to elect to office minority group candidates sufficiently proportionate to their numbers in the population.

Thus, the Shelby County Court opinion frees Congress to amend the 1965 Act to impose new burdens on a new group of States and their political subdivisions — or on all states — just so long as Congress justifies the imposition of new burdens to meet current needs.

In our Shelby County amicus brief, we advocated a legal system that treats each man as man, no more and no less.  We urged the Court to strike down not only Section 4 of the 1965 Act, but Section 5 — to close the door to special privileges based upon race — minority, majority, or otherwise.  The Court rejected that invitation.

In his concurring opinion, Justice Clarence Thomas claimed that the same reasons that justified the Court to strike down the outmoded formula of Section 4, would justify striking down Section 5 as well.  However, until the Court returns to the rule of law — fixed as to time, uniform as to person, and universal as to place — we will continue to be ruled by judges whose opinions change with changing times.

Postscript:  To put this case into the context of how the current Court views constitutional principles, just the day before the Court handed down Shelby County, the Court decided Fisher v. University of Texas at Austin.  In Fisher the Court refused to adopt the principle of racial equality in the admission of students to the University, permitting race to be used as a factor in the admitting process if it did so in pursuance of a compelling interest to carry out a policy of educational diversity.  Thus, once again the Court sidestepped our constitutional commitment in the nation’s charter and in the Fourteenth Amendment to the principle of human equality regardless of race or color, and preserved the right of every justice to decide each case as he pleases, without meaningful constitutional constraint, doing what each believes to be right in his own eyes.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They filed an amicus curiae brief in the Shelby County case.  They can be reached at wjo@mindspring.com or twitter.com/OlsonLaw

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