The Supreme Court saved its hot-button rulings for last, as usual, and the justices delivered something to please—and outrage—every band of the cultural spectrum. They delighted progressives by striking down the federal Defense of Marriage Act and rejecting a lawsuit that sought to uphold a ban on same-sex marriage in California. Those same folks were furious, however, when the court rolled back a key enforcement mechanism in the historic Voting Rights Act and ordered an appeals court to look skeptically at the affirmative action program of the University of Texas. Those opinions were hailed by many conservatives.
Further signs of seesaw struggle on a Janus-faced court? Not necessarily. The thread running through all these cases is the possibility of change in American society. The differing reactions suggest what sorts of change Americans believe in.
Justice Anthony Kennedy was only stating the obvious when he wrote in his decisive opinion that changing ideas about same-sex marriage have come “slowly at first and then in rapid course.” When then President Clinton signed the DOMA into law in 1996, no state sanctioned marriages of same-sex partners. The idea that the Constitution would require Uncle Sam to recognize such marriages was a fringe theory at best. But now a dozen states, plus the District of Columbia, permit them. And suddenly the question of recognizing some legal marriages, while spurning others, was a matter of equality under the law. “What the State of New York treats as alike”—in this case the marriage of two lesbians—“the federal law deems unlike,” Kennedy observed.
The justices declined to decide, in the California marriage case, whether the ballot initiative called Proposition 8 unconstitutionally discriminated against same-sex couples by outlawing their unions. Instead, the court ruled the ban’s supporters had no standing to appeal a lower court holding against Prop. 8. The almost certain outcome will be freedom to marry in the Golden State.
If such change is possible in this realm, is it also possible in the vexed and sordid realm of race relations? The court thinks so. Or at least, Justice Kennedy—again the deciding vote—thinks so. In the voting rights decision, he joined the opinion of Chief Justice John Roberts, which held that the ghosts of the 1960s can no longer justify harsher treatment by the federal government of certain states and counties compared to others. Under the Voting Rights Act, passed in 1965, much of the South has been required to secure federal permission before altering election laws. But Roberts noted how much has changed since those bad old days: in five of the six states originally covered by the act, black voter turnout now exceeds white turnout. Measures crafted in the days of poll taxes and murderous repression require fresh analysis in a time of black mayors and an African-American president. Today’s laws “must be justified by current needs,” Roberts wrote.
Justice Ruth Bader Ginsburg warned in her dissents from the voting rights and affirmative action rulings that less has changed than meets the eye, and that the old tools for fighting racism are as necessary as before. “Past is prologue,” she wrote, quoting Shakespeare. That’s true, sometimes. But not always. Sometimes, the past can be overcome.