The U.S. Supreme Court ended its term with some of the most highly-anticipated decisions of the year. It overturned part of the federal Defense of Marriage Act and opened the door to resume same-sex marriages in California. It made race-conscious admissions slightly harder, but not impossible. And it invalidated a key section of the Voting Rights Act of 1965. Most of the news this week focused on immediate reactions to the high court’s rulings. Now, we begin to contemplate their cultural and political implications. Diane and her guests discuss the practical effects of this week’s landmark Supreme Court decisions and what’s next for those on all sides of the arguments.

Guests

  • Bruce Fein former associate deputy attorney general, Republican counsel during the Iran-Contra hearings and founding partner with the Lichfield Group.
  • John Malcolm rule of law programs policy director at Heritage Foundation.
  • Sherrilyn Ifill director-counsel of the NAACP Legal Defense and Educational Fund.
  • Jonathan Rauch guest scholar at Brookings Institution and author of "Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America."
  • Joan Biskupic legal affairs editor for Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. It's been a busy week for those monitoring the landmark decisions that came at the end of the Supreme Court session. Joining me to discuss the far-reaching effects of the high court's rulings: Joan Biskupic of Reuters, Bruce Fein of the Lichfield Group, Sherrilyn Ifill of the NAACP and Jonathan Rauch of The Brookings Institution. I hope you'll join us, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Good morning, and thank you all for bring here.

  • 10:07:48

    MR. BRUCE FEINGood morning.

  • 10:07:49

    MR. JONATHAN RAUCHGood morning, Diane.

  • 10:07:50

    MS. JOAN BISKUPICThank you.

  • 10:07:51

    REHMGood to see you. Joan Biskupic, very briefly, recap four of these latest major rulings from the Supreme Court for us.

  • 10:08:05

    BISKUPICSure, Diane. OK. We started on Monday with a big case on affirmative action from the University of Texas in which the justices, by a 7-to-1 vote, essentially let affirmative action stand nationwide and sent back to a lower court this University of Texas dispute over whether raise in that program could be taken into account as a criteria for an applicant. That was a modest step, 7-to-1. Only Justice Ginsburg dissented there.

  • 10:08:35

    BISKUPICOn Tuesday, we had a real blockbuster, 5-to-4. The Supreme Court struck down a real centerpiece of the Voting Rights Act of 1975. That decision was a long ideological grounds with Roberts -- Chief Justice Roberts leading the majority and the four liberals in descent there. Wednesday, our final day, we had the two big gay rights rulings. Actually, one was important, one was also -- the other was sort of a placeholder.

  • 10:09:06

    BISKUPICBy 5-to-4, the Supreme Court ruled that a federal law that had denied benefits to same-sex married couples that had been allowed their opposite sex counterparts with unconstitutional extending federal benefits to couples who are legally married in the 13 states that allow that. Separately, the court ruled on a different 5-4 vote that it did not have the jurisdiction to intervene in the California Prop 8 case.

  • 10:09:39

    BISKUPICIt said that the challengers to Proposition 8, which banned gay marriage in that big state out West, lack legal standing to bring the case broader -- extend everything back, effectively opening the door to same-sex marriage in California but saying nothing about a national constitutional right to same-sex marriage.

  • 10:09:58

    REHMJoan Biskupic, legal affairs editor for Reuters. Bruce Fein, do you see any consistent theme throughout these four decisions?

  • 10:10:12

    FEINI think the consistent theme would've been articulated by Justice Oliver Wendell Holmes, the life of the law is not logic. It's experience. It responds to the moral deposit, the felt necessities of the time. I'd like to go back and just have an addendum on the Abigail Fisher case against University of Texas. I think the court sent a signal that they were inviting a challenge to any kind of racial or gender preference whatsoever.

  • 10:10:37

    FEINAnd it was heavily larded when, well, the parties haven't asked us to overrule the Grutter decision that upheld, at least, preferences in the name of educational diversity. And, plus, the court sent a signal by the way it examined the grounds that the university advanced to justify the diversity advancement by racial preferences in such language that it was like a sword of Damocles and said, we don't want to drop the sword, but the 5th Circuit on remand should.

  • 10:11:04

    FEINSo I would be -- I think Joan maybe was too optimistic and suggesting, well, this is leaving the idea of preferences undisturbed. But to go back into the larger issue that you asked, Diane, you know, in my valedictorian speech in high school, I spoke about Viola Liuzzo. She was a Detroit housewife, white, who had come down in 1965 to help register blacks in Mississippi and was shot in the head with an FBI agent in the car.

  • 10:11:29

    FEINAnd now -- that was 1965, the year that the Voting Rights Act was enacted. Now, I look today. I couldn't write a valedictorian speech like that. We have a black member who's in the White House. Blacks turned out in greater numbers to vote in the last elections than whites did. There are more blacks in the state of Mississippi to elected officials. Otherwise, it doesn't mean that racism doesn't still exist, but we customarily permit laws to go onto effect and challenge after the fact.

  • 10:11:56

    FEINAs you well know, by witnessing the flurry of laws against Roe v. Wade at the state level, you know, abortions you can't have after 12 weeks or 20 weeks. No one says, well, gee, the state should have to submit those to some federal review board before they take effect, they passed. The ACLU or Planned Parenthood challenges them. They're litigated in that way. And I do want to underscore as well, although it's often said, Section 5, the preclearance standard is the centerpiece of the Voting Rights Act.

  • 10:12:22

    FEINIn my view, the real strength was Section 2, which was added in 1982, which prohibits any voting method or practice that results in a discriminatory effect which means under the Supreme Court decisions that where there's racial bloc voting, you can show that the political clout of minorities has been diminished. You have a Section 2 case.

  • 10:12:41

    REHMAll right. Jonathan Rauch, do you see connective tissue among those decisions?

  • 10:12:50

    RAUCHI see some connection in the style. I don't see any connection in the substance. I think on affirmative action and voting rights, conservatives, in effect, got a narrow majority in one. I think on gay rights, the liberals got a narrow majority in one. But I also think what's happening in both cases is that you're seeing these 5-4 splits in which the justices are splitting the baby and trying to act relatively modest in the service of both the liberal and the conservative agendas. So differing ideological ends, but fairly modest methods.

  • 10:13:32

    REHMNow, Sherrilyn Ifill, as you look at the affirmative action case in Texas and the voting rights case with Section IV, how do you see those two issues?

  • 10:13:54

    MS. SHERRILYN IFILLWell, in many ways, I think we have to really disconnect them. The court does two very different things in those cases. First of all, in the Fisher affirmative action case, the court declines to take on the issue of the Grutter case and declines to overturn the constitutionality of the use of race in admissions, and that's a good thing. But, you know, just hearing the earlier comments, I mean, there was an even more restrained position the court could have taken, so I was really fascinated to read Justice Roberts' brief on standing in the Perry case.

  • 10:14:27

    MS. SHERRILYN IFILLAnd, you know, the Fisher case was a case in which there was a very viable argument that Abigail Fisher had no standing to even bring that case. So there was a way. If the court wanted to, they could have taken the restrained procedural position. But in any case, we're happy that they declined to overrule affirmative action in that case. And they sent it back to the lower court, and they managed to get seven justices to agree to send it back to the lower court, which suggest that there was some wrestling going on.

  • 10:14:53

    MS. SHERRILYN IFILLAnd then in the voting rights case, the court takes a much bolder and, I think, overreaching position, overreaching Congress and almost even taking a position of kind of a form ham-fisted social engineering, a kind of statement by the five-justice majority about where this country is as it relates to race. And although there was a record that Congress had developed a 15,000-page record that really was the four corners that the court should have been operating in, it clearly had its own views.

  • 10:15:24

    MS. SHERRILYN IFILLAnd we saw this at the oral argument where Chief Justice Roberts asked about registration in the state of Massachusetts and so forth. So they came with some of their own views, and they wanted to essentially suggest that we're in a different stage, that we have to hit the reset button and send it back to Congress. And that was an extraordinarily aggressive approach for the court to take in a case where Congress engaged in nearly a year of hearings.

  • 10:15:49

    MS. SHERRILYN IFILLThey essentially threw out what Congress did over the course of a year in 2006, said it doesn't matter, in fact, even really said it's irrational because they threw it out on a rational-basis analysis. So you have 390 members of the House, 98 members of the Senate, and essentially the United States Supreme Court has said the action they took in 2006 was irrational. This seems to me was a pretty bold and aggressive move.

  • 10:16:09

    REHMSherrilyn Ifill, she is director-counsel of the NAACP Legal Defense and Educational Fund. We are not going to re-argue these cases this morning. I know each of you has a perspective on each of these cases. Rather, looking forward, I'd like to understand what you see going forward. Jonathan Rauch, you say that the same-sex rulings are going to have the biggest impact on cultural momentum. What do you mean?

  • 10:16:56

    RAUCHWell, the court could have set new legal standards, new legal doctrines relating to gay rights and same-sex marriage. It could have, for example, said that if you want to make a law that seems to discriminate against gay people, you have to meet a very high standard called strict scrutiny. It could, for example, have said that there's a constitutional right to gay marriage. It didn't do those things. Instead, it took more modest steps from a legal point of view. It didn't write a lot of new law.

  • 10:17:28

    RAUCHBut it also said, in overturning the defense of marriage case, you're on notice from now on, legislators and voters, if you come to us with something that looks to us like it discriminates against gay people and don't have a better reason than you've been able to give us in the past, you can expect to be thrown out of here very hard. And that's going to influence the debate coming forward.

  • 10:17:52

    RAUCHIt's going to encourage gay rights activists to pursue their rights in courts, and it's sort of putting the culture on notice. The Supreme Court's not going to lead the gay rights parade, but it is going to cheer on the sidelines. There is now a five-justice majority for moving the ball down the field in terms of gay equality.

  • 10:18:12

    REHMYou have just 13 states plus D.C. which have approved gay marriage. Do you expect that to move forward on a rapid basis?

  • 10:18:27

    RAUCHMy guess is that we'll see a few states come in to gay marriage quite rapidly, for example, Illinois, and then we hit something of a wall in red states that have constitutional bounds on gay marriage.

  • 10:18:40

    REHMJonathan Rauch, he's guest scholar at the Brookings Institution. Short break. We'll be right back.

  • 10:20:04

    REHMAnd welcome back. Just before the break, we were talking about the Defense of Marriage Act, how it may affect individuals and states going forward. Now, joining us for just a few moments from his office here in Washington, D.C., is John Malcolm. He is rule of law programs policy director at The Heritage Foundation. Good morning to you, sir.

  • 10:20:38

    MR. JOHN MALCOLMGood morning. Thank you for having me on.

  • 10:20:39

    REHMI gather you were happy with the court's -- pardon me -- ruling on voting rights. Tell us why.

  • 10:20:49

    MALCOLMYes. Well, of course, one, I think that it was a recognition, at least, by the majority of justices that there's been tremendous progress in terms of remedying past racial discrimination when it comes to voting. So I was happy for that reason. Another is that Voting Rights Act, the section that was struck down, was quite an intrusion into state sovereignty, violated principles of federalism.

  • 10:21:16

    MALCOLMIt was upheld by the court in 1966 because that provision was only supposed to be in law for five years. It was reauthorized several times since then. And at that time, there was an extensive record of then-existing pervasive discriminatory practices by the covered states. So the Voting Rights Act required nine states and parts of six others to get preclearance from either a federal court...

  • 10:21:42

    REHMRight.

  • 10:21:42

    MALCOLM...in Washington, D.C. or the Justice Department...

  • 10:21:44

    REHMRight.

  • 10:21:44

    MALCOLM...before it could implement any of its voting changes. And now, they said, look, if we're going to continue to impose that kind of a burden, it has to be based on current needs and current data. And that data, fortunately, is very, very, very hard to come by because blatant discriminatory practices have gone on the way of the dinosaur. Thank God.

  • 10:22:07

    REHMAt the same time, I wonder if you aren't, to a certain extent, concerned about reports of racial discrimination, long lines, demands for voter ID, some reports of intimidation of polls. Have you heard about those, especially, for example, in North Carolina, in Texas, pretty recent reports?

  • 10:22:40

    MALCOLMWell, I would point out that there have been reports that the Voting Rights Act has been completely repealed. That is not true. Section 2, which is a permanent nationwide provision that bans racial discrimination when it comes to voting, is still in place. And those practices, if they exist, can be challenged in court by individuals and by the federal government.

  • 10:23:02

    MALCOLMVoter ID laws are, of course, controversial. There are people of good will who believe that they are being implemented for discriminatory purposes. There are other people of good will who believe that these are being put in place in order to ensure the integrity of election.

  • 10:23:17

    REHMAnd turning to Fisher v. University of Texas, what do you think is going to happen in the real world of admissions going forward?

  • 10:23:30

    MALCOLMWell, I think that there are going to be a lot more challenges to admissions practices in universities that provide racial preferences to minorities. In the Fisher case, the 5th Circuit had said that is was Abigail Fisher's burden to prove that the university had acted in bad faith. The Supreme Court said good faith-bad faith is completely irrelevant, and it is not the challenger's burden to disapprove the benefits of a racial preferences practice.

  • 10:24:00

    MALCOLMIt is up to the school to prove that there is no less restrictive means, no race-neutral way of achieving diversity on campus. So the burden has clearly shift -- shifted, and I think there will be a lot more challenges. And I think that courts will be looking at these practices with a lot more strict scrutiny than they have in the past.

  • 10:24:21

    REHMJohn Malcolm, he is rule of law programs policy director at The Heritage Foundation. Thanks for joining us.

  • 10:24:30

    MALCOLMThanks for having me on.

  • 10:24:32

    REHMAnd, Sherrilyn Ifill, I have the feeling you have a very different perspective of where this goes from here.

  • 10:24:41

    IFILLYeah, I do. I think that, first of all, with regard to the Fisher case, I have no doubt that there will be many more challenges, and they'll be met. And, in fact, we have no doubt that Texas can meet the challenge that was set by the court in the Fisher case. In fact, Fisher -- Texas put on a very robust presentation of the race-neutral alternative that they had tried the top 10 percent plan, where the top students graduating in the top 10 percent of any public high school would be admitted to the University of Texas.

  • 10:25:09

    IFILLAnd they demonstrated that that was deficient for the kind of educational diversity in the classroom that they are seeking. And so they'll go back. We'll be there as well, the NAACP Legal Defense Fund. We've been representing black students, and we'll make that showing. With regard to the Voting Rights Act, the issue here is the meaning of discrimination.

  • 10:25:26

    IFILLIt's perfectly fine to define discrimination only as water hoses, dogs, and intimidation. But, in fact, we all know that discrimination looks quite different in 2012 and 2013 than it did in 1965. And Congress knew that when it enacted Section 5.

  • 10:25:45

    IFILLAnd the reason it enacted Section 5 that way it did was because it wanted to get at and it said specifically in the legislative history, all the ingenious methods that jurisdictions might use to undermine the ability of African-Americans to participate in the political process. So we're going back to drawing board. We're pressing Congress, and we feel quite certain that this going to be a very passionately debated issue over the next year. But we will have a Voting Rights Act that will protect minority voters.

  • 10:26:13

    REHMJoan Biskupic.

  • 10:26:14

    BISKUPICI just want to offer a couple of reality checks on the votes and the make-up of the justices and what might happen going forward. I think that it's true that lots of people are saying we will see many lawsuits against universities going forward. But let's remember how long it took to even get this lawsuit. The last time affirmative action came up to the Supreme Court in the University of Michigan case, it was 2003.

  • 10:26:35

    BISKUPICThis current one, 10 years later, was actually many years in the making because the groups that oppose any kind of racial consideration and admissions were having trouble finding white students to come forward. Universe -- these policies are very controversial. I think we should all acknowledge that the nation is split on where -- what the race of -- the role of race should be in admissions for who gets a place.

  • 10:27:00

    BISKUPICBut universities really like to do this, and white students feel -- trouble themselves coming forward. And this Abigail Fisher was the result of a very long search by a conservative advocate by the name of Edward Bloom to get this case up here. So I agree that we'll see some -- we might see some efforts. But I don't know when it's going to come back up.

  • 10:27:20

    BISKUPICAnd the other thing I wanted to mention in response to Jonathan on the same-sex marriage case -- cases from yesterday, which I think is fascinating, I agree that going forward, states and local governments that do any kind of laws that might undermine equality between same-sex couples and gay men and lesbians versus opposite sex couples will face more of a scrutiny.

  • 10:27:49

    BISKUPICBut on same-sex marriage itself, I think the Supreme Court did not put out any kind of welcome mat. When you actually read the rulings together and see how the -- even the liberal justices splintered, they did not want to go near this yet. They are essentially waiting to see more action in the states. So I think as much as we got very strong rhetoric from Anthony Kennedy and the liberals, that is of a piece of what the court had already done in 1996 and 2003.

  • 10:28:15

    BISKUPICAnd the final thing I will mention, Jonathan referred to this strong vibe justice majority, which we have. But remember, in 1996 and 2003, we actually had a six-justice majority. Sandra Day O'Connor was the sixth vote for gay rights in those cases.

  • 10:28:29

    REHMAbout whom you've written a biography.

  • 10:28:32

    BISKUPICRight. And she was succeeded by Samuel Alito, who, in Wednesday's cases, was firmly in the camp that said, leave this to the states.

  • 10:28:42

    REHMJonathan.

  • 10:28:42

    RAUCHThis is the political genius of Justice Kennedy.

  • 10:28:45

    BISKUPICThat's right.

  • 10:28:46

    RAUCHI don't know many law professors who think he's a great jurist. But he is clearly a very talented politician because in 1996, 2003 and again in 2013, he's very good at finding a centrist solution where he can get five courts -- five votes -- excuse me -- to move the ball down the field in the direction he wants to go. And, of course, it's five or six votes in each of those occasions. But each time he does move the ball.

  • 10:29:14

    REHMBruce.

  • 10:29:15

    FEINDiane, first, on the Grutter affirmative action. One, it wasn't that the court declined to overrule Grutter. It insisted on several occasions, no one had asked it to. So I would be less confident that it isn't willing to drop the guillotine. Secondly, with regard to the idea of the Voting Rights Act, sure, there are more sophisticated methods of discrimination. But the issue isn't whether or not they're illegal. It's how you try to please the illegalities.

  • 10:29:41

    FEINEveryone knows you don't have to have fire hoses and lynchings in order to violate laws against racial discrimination. It's quite extraordinary to subject a state or local county's laws to federal review before they take effect. And that extraordinary remedy is what we're talking about here, not changing the substantive standard of what's illegal.

  • 10:29:58

    FEINOn the gay marriage issue, I think the critical issue that was left unaddressed is the full faith and credit clause. What happens when a couple, legitimately married gay couple in Massachusetts moves to Texas? Does Texas have to recognize it? Do they become unmarried? Could -- how do they file their federal income tax returns? Is it a joint return in Massachusetts and otherwise in Texas?

  • 10:30:05

    FEINAnd I think most people will feel very uncomfortable about thinking, however they feel about gay marriage, that someone goes from a situation of matrimony into being compelled to divorce themselves, moving from one state to another. And I think that will push a national movement towards recognizing gay marriage universal.

  • 10:30:37

    RAUCHWell, remember, that's been the case now, Bruce, for 10 years, and I'm in that situation. I'm married in the District of Columbia where I work, and I'm magically unmarried every time I cross Memorial Bridge to go home. And I've lived with that for a while, and I have to live with it for a while longer. It's unfortunate from a policy point of view, but it's established constitutional law that states can set different marriage standards, and the federal government will write regulations deciding whether it's where you live or whether you got married. All of that can be worked out.

  • 10:31:08

    FEINBut I'm not sure whether if you go back to the prohibitions upon intermarriage based upon race that those laws were struck down in Loving and Virginia. And at that time, I don't think we had a full record making clear that a interracial couple married legitimately in one state became divorced in another state that didn't recognize it. The issue got pre-empted with Loving, which made it a universal right for interracial marriage.

  • 10:31:33

    RAUCHFor most of American history, including under those laws, different states did have different standards, including on race. So it's only very recently they've, in fact, been uniform.

  • 10:31:43

    REHMJoan.

  • 10:31:44

    BISKUPICWell, what I'll say is we will all be back. We'll be back. But this Supreme Court...

  • 10:31:47

    REHMYeah.

  • 10:31:48

    BISKUPIC...probably won't have the same nine members. I think by the time we get another case back -- and right now people like Ted Olson and David Boies and their legal team are looking for the next test case to bring up here, but it's going to take a couple of years. By then, maybe Ruth Bader Ginsburg will be gone. By then, we might even have a different president in the White House. So watch the space.

  • 10:32:07

    REHMSherril.

  • 10:32:07

    IFILLLet me return to the question of affirmative action and give the court a little bit more credit here. This is not a court that has shown itself disinclined when it wants to take on an issue to even if the parties have not raised the issue, asking them to raise the issue and ordering, you know, re-briefing and re-argument. So simply saying that nobody asked them to overturn Grutter doesn't really answer the question.

  • 10:32:27

    IFILLThey declined not to do it, and certainly they could have reached out and do it -- done it. This is a court that in Citizens United, you know, determined that they wanted to get to that issue, and they got to that issue even though it hadn't been raised by the parties below. The second piece that's most important is, you know, it keeps getting lost in the shuffle. The 15th Amendment to the Constitution gives Congress the authority to enforce the ban on voting discrimination in the 15th Amendment.

  • 10:32:50

    IFILLThat's really the issue here. The point that I think is really the one we want to take away today is the Supreme Court in the Voting Rights Act case was willing to essentially substitute their view for Congress' view about how best to do that. It's the policing that you talked about, but Congress made a determination. The Supreme Court disagreed, and they were willing to push the envelope and force their view.

  • 10:33:12

    REHMSherrilyn Ifill, she's director-counsel of the NAACP Legal Defense and Educational Fund. Isn't there something of an irony here, though, that you have the court ruling as it did on DOMA and ruling as it did on affirmative action, in one case saying -- I mean, is it an activist court or not?

  • 10:33:44

    FEINI think, Diane, as my opening statement from Justice Holmes, it's not logic, and it's just -- the fact is that the cultural mores on those two issues have migrated in a different direction. And that's how you can reconcile the two that may be logically inconsistent, but, you know, culture is oftentimes inconsistent.

  • 10:34:02

    REHMDo you, Sherrilyn, expect that Congress will go back and deal with the voting rights question?

  • 10:34:11

    IFILLYeah. In fact, I know they will because we are already talking to so many people in Congress who really feel passionately about this. And one of the things they feel passionately about is they feel that the Supreme Court slapped them in the face, that they...

  • 10:34:21

    REHMJohn Lewis, for example.

  • 10:34:22

    IFILLJohn Lewis, for example, but many others, including some Republicans who are not public yet. But the reality is that, you know, when the Supreme Court does what it did -- when they throw away a year's worth of work that Congress did, and they move into an area that the Constitution says is Congress' area -- then Congress gets upset, just as a matter of their own power. And it's also worth remembering that every time the Voting Rights Act has been re-authorized, it's been re-authorized with a bipartisan Congress.

  • 10:34:48

    IFILLThey've managed -- even in years of great contention, even when we've had, you know, Ronald Reagan as president and George W. Bush as president -- they've managed to pull it together for the Voting Rights Act. And I think you've seen, even in some of the interviews, the unwillingness of many senators and members of the House to step out and speak out against amending the Voting Rights Act. And that tells you that they've got to walk very carefully here, very carefully.

  • 10:35:12

    REHMOn the other hand, Joan, do you expect to see state and local governments enact new voter ID laws?

  • 10:35:23

    BISKUPICOh, definitely. In fact, some states -- notably Texas has already said, you know, voter ID law that had been excluded before under Section 5 they want to come back with. This is very tricky because states have a strong interest in, you know, asserting their -- many of the Republican states have tried several measures that were blocked either by the Justice Department or a three-judge court here in D.C. that will probably return.

  • 10:35:51

    BISKUPICAnd I want to say how difficult it is for Congress to set new criteria. Back in 2006, when this was re-authorized, the -- both sides -- or the groups that came together for the coalition, both parties thought, should they go back and look at 4 (b), look at the criteria, look at the formula? And they made a conscious decision not to do that because it's hard. It's not just that it's -- you know, that it inspires Southern jurisdictions versus Northern jurisdictions...

  • 10:36:18

    REHMPassions.

  • 10:36:20

    BISKUPIC...but it's a very difficult thing to do. And you already start with a very polarized Congress, and then you put this difficult issue before it. I -- I'm not looking for anything soon, even though there might be some talks...

  • 10:36:33

    REHMBruce Fein.

  • 10:36:34

    FEINThere's already been a challenge to voter ID laws out of Indiana in U.S. Supreme Court, and Justice John Paul Stevens wrote the opinion sustaining it, he being on the liberal side of the aisle here. And the question isn't whether or not a voter ID law in the narrow sense under Section 5 is legal or not.

  • 10:36:52

    FEINIt's whether you try to stop it before it goes in effect, or if it passes, you then challenge it as being unconstitutional because it was racially motivated. I also want to say with regard to the claims that this is going to be a disaster for minorities in the electoral process, I remember years ago there was a case called Shaw v. Reno that was authored by Justice Sandra Day O'Connor.

  • 10:37:12

    FEINAnd I'm sure Joan would know the details more than me. But it basically held that racial gerrymandering, that drawing district boundaries for the purpose of promoting the election of a candidate of a particular race was unconstitutional. You know, it was said after Shaw v. Reno that these racially gerrymandered districts were essential to getting members of minorities elected, and it all proved false. They all remained incumbents after the fact.

  • 10:37:35

    REHMBruce Fein, he's founding partner with the Lichfield Group. He served as associate deputy attorney general during the Reagan administration. Short break, right back.

  • 10:40:04

    REHMAnd welcome back. Time to open the phones. And question from Sloan in Reston, Va. Good morning to you.

  • 10:40:16

    SLOANGood morning, Diane. Thanks so much for having me on.

  • 10:40:18

    REHMCertainly.

  • 10:40:19

    SLOANTwo issues. First, on marriage equality. My husband and I live in Virginia. We've been together for nearly 20 years, married in 2011 in New York State. Now the Supreme Court has said that the federal government can no longer treat our marriage differently, unequally, for federal purposes. So does that mean, with regard to federal marriage recognition, that my husband and I will now have equal access to the federal rights, benefits and responsibilities that all other married couples have access to, just like a straight couple married in New York and living in Virginia?

  • 10:40:58

    REHMJonathan Rauch.

  • 10:41:00

    RAUCHYes.

  • 10:41:01

    REHMPeriod.

  • 10:41:02

    RAUCHThey will. Essentially, they will. There's a lot of details...

  • 10:41:05

    REHMFederal rights.

  • 10:41:06

    RAUCHFederal rights.

  • 10:41:07

    REHMYeah.

  • 10:41:07

    RAUCHThere are a lot of details to be worked out on regulations in places like the Internal Revenue Service. But that's what this ruling means, and that's how President Obama says he's going to interpret and enforce it.

  • 10:41:19

    REHMBut earlier you said something to the effect that you live here in Washington -- or you work here in Washington. You cross the bridge to Virginia, and what happens, you're not recognized as being married. So what does Sloan face living in Reston, Va.? What are the laws he could run into going forward?

  • 10:41:49

    RAUCHThe states have, last time I looked, 400-some provisions that hinged on marital status. The federal government has well over a thousand. What this means for me is that I will be married in the eyes of the federal government and in the eyes of D.C. and Maryland, for example. But I will not be married in the eyes of the state of Virginia. So I'll be filing my Virginia return as a single person...

  • 10:42:15

    REHMOh, I see.

  • 10:42:16

    RAUCH...my federal return as a married person.

  • 10:42:19

    REHMAnd how much more will you have to pay -- not in actual terms, but is it a lot more? This morning, I heard somebody say they had to pay like $46,000 'cause they were living in the wrong state.

  • 10:42:37

    RAUCHWell, the narrow answer to that is it depends on the couple and the income, and it's the same situation straights have faced all these years. The big answer to that question is, Diane, who cares? For people like me, people whose often -- whose spouses are shut out of the country because they haven't been able to get in, you can't get into the hospital room if you can't get into the country.

  • 10:43:00

    RAUCHWe haven't been able to get access to Social Security survivor benefits. We can't inherit tax free. We've had to testify in court against our spouses. All of that is going down. It is a red-letter day for gay Americans. So we're not counting the pennies.

  • 10:43:14

    REHMSo you would not -- God forbid, if you were faced with a serious illness, you would not go to a hospital in Virginia?

  • 10:43:26

    RAUCHI would hope -- yeah, that's a good point. I hadn't thought about it. But that's right. I'd be inclined to avoid Virginia if I could.

  • 10:43:34

    FEINDiane, if I could add a footnote.

  • 10:43:35

    REHMCertainly.

  • 10:43:35

    FEINI think some of the federal laws determine marriage based upon your current residency. They may be overtaken by the decision, but it's varied as to current residency as opposed to where the marriage was consummated.

  • 10:43:48

    REHMSloan, I hope that answers your question.

  • 10:43:52

    SLOANWell, thank you. That's helpful. There was -- I did have -- and it is just very, very moving to -- that we've come to this day and there's farther to go. But it is a great step forward for the country. I did have one separate question on voting rights. If -- can't Congress simply pass some form of a voting rights restoration act that says, fine, Supreme Court, you want to throw out our formula? Here, we won't pick and choose. Now all states, each and every state will have to submit proposed changes to the Justice Department. So no American's right to vote is potentially threatened.

  • 10:44:24

    REHMSherrilyn.

  • 10:44:25

    IFILLI think that reading the majority's decision, Congress cannot do that, right, because what the court is essentially saying -- well, it cannot do that without demonstrating that the need is there, right, that it has to be based on current needs. I mean, Congress engaged in a process over a year that they thought demonstrated the current need, and the Supreme Court said it doesn't. So whatever they do, Congress can't simply do it, right?

  • 10:44:49

    IFILLAs the caller suggests, Congress will have to demonstrate by developing a record of what the need is. And if they want to pass a nationwide statute for the kind of intrusion that Bruce Fein describes, they will have to demonstrate current need. So any way you slice it, Congress is going to have to develop a record that supports their amendment to the Voting Rights Act.

  • 10:45:10

    REHMJoan.

  • 10:45:11

    BISKUPICYes, it's true because both sides agree that Section 5 and the 4 (b) formula were extraordinary steps because they said, you can't do anything, states, until we say OK. So to do that nationwide would be even a larger step into state sovereignty. But the key thing here is that Congress said, for these particular jurisdictions, it's deserved, given their history of racial discrimination.

  • 10:45:37

    BISKUPICAnd many of us wondered if the court actually would use a case from Alabama, which has, till today, a very strong history of problems at the polls where the Justice Department has had to say, don't do that because it could hurt minority voters if the court would use a case from Alabama, but it did.

  • 10:45:54

    IFILLLet me just add something here 'cause I want to make sure there's not confusion. The Congress in 2006 didn't simply look back at discrimination in 1965 and say, these states have this history. When I talk about this record that Congress developed, that record was a voting discrimination in those jurisdictions between 1982, which was the last time the act was re-authorized, and 2006. It was up to 2006. So Congress was dealing with a very current record of voting discrimination in those jurisdictions.

  • 10:46:23

    REHMTo Benton Harbor, Mich. Good morning, James.

  • 10:46:28

    JAMESGood morning, Diane. Thank you for taking my call.

  • 10:46:30

    REHMSurely.

  • 10:46:31

    JAMESAnd I would like to ask your panel why they would have any confidence at all that this obstructionist Congress would, in any way, amend the Voting Rights Act. They can't pass anything.

  • 10:46:45

    REHMBruce.

  • 10:46:45

    FEINI agree with that. I think there may well be a legislation introduced to try to satisfy the court standards of arbitrariness, but I certainly cannot see --certainly the House of Representatives, which is ossified as a body, doing anything. There will be those who were at the forefront of the Voting Rights Act introducing the legislation, but nothing gets on that agenda until John Boehner, the House Speaker, says so. And he's got the Hastert rule that says unless a majority of Republicans agree...

  • 10:47:14

    RAUCHI have to agree with that...

  • 10:47:15

    IFILLWell, fortunately, Congress may be ossified, but it's not calcified. They do have to face elections, and they have to face them next year. We won't always have this Congress.

  • 10:47:23

    REHMJonathan.

  • 10:47:24

    RAUCHI'm with Bruce. They can't pass a farm bill, which is supposed to be easy.

  • 10:47:27

    REHMYeah, yeah.

  • 10:47:28

    RAUCHSo they certainly aren't going to be able to do voting rights.

  • 10:47:29

    IFILLYeah. But the cumulative effect of their inaction actually is beginning to have consequences. And so they didn't pass the farm bill, and that's not of no moment, actually. That's relevant to what they're going to be facing in their home jurisdictions when they return, and the Voting Rights Act is going to be part of that.

  • 10:47:45

    FEINWell, if I could just comment, one of the problems with the reason why the Congress becomes so calcified, if you will, is because -- political gerrymandering. The incumbents, generally speaking, don't confront the kind of challenges that you've described as being -- forcing them to be responsive to a larger public opinion.

  • 10:48:05

    IFILLI think money -- and I think...

  • 10:48:06

    FEINAnd that's why on immigration, I mean, the House is going to not even take the bill.

  • 10:48:09

    IFILLI think it's money in politics is the reason for that.

  • 10:48:11

    REHMAnd here's an e-mail from Tom. "My same-sex partner and I have been together 12 years. Our home is in Alabama. In August, we plan to get legally married in Washington State but then will return to our home. Two questions: If one of us has a serious illness or injury, will our partner qualify for M -- FMLA leave from their job? And second, will we be able to file a joint federal tax return from Alabama?" Jonathan Rauch.

  • 10:48:59

    RAUCHThe real answer to that is see your lawyer and accountant and come back in a few months. I'm not really qualified. But FMLA, that's -- I believe that's a federal law, so I'm guessing that that will qualify. Joint federal return depends on IRS regulations yet to be written about whether they judge your marital status based on where you were married or where you're living at the moment. And that decision has yet to be made.

  • 10:49:23

    REHMBut would you have a fear of living in Virginia?

  • 10:49:28

    RAUCHA fear?

  • 10:49:29

    REHMA fear of living in Virginia, concern...

  • 10:49:33

    RAUCHI wouldn't have...

  • 10:49:34

    REHMConcern that your full rights would not be...

  • 10:49:35

    RAUCHSure. Oh, sure. I think all gay married couples are going to have concerns living in states that don't recognize their marriages, and that's why they -- we will continue to push for change in those states.

  • 10:49:49

    REHMAll right. Let's go to Carrboro, N.C. Good morning, Steve.

  • 10:49:58

    STEVEHello, Diane. Thank you for having me on the show.

  • 10:49:59

    REHMSure.

  • 10:50:01

    STEVEWell, I have a very -- it's a very complicated point. I'm surprised that the court missed the opportunity to require the law to comport with the facts of human identity, at least in the DOMA case. The problem with opposite sex marriage laws is that they're literally unenforceable. There's really no non-arbitrary way to define males and females.

  • 10:50:25

    STEVESo if we talk about folks who have ambiguous genitalia, chromosomal abnormalities, hormonal ambiguities, gonadal particularities and other kinds of sexual identity that just don't fit with our prejudices, I mean, we've got a situation where it would be literally impossible for local officials to determine the sexual, you know, the sexual identity of marital partners in some non-arbitrary ways.

  • 10:50:57

    REHMAll right. Jonathan.

  • 10:50:59

    RAUCHThis is a very rare problem, and it's dealt with in different ways by different states, which, I think, is the right answer.

  • 10:51:06

    REHMAll right. And to Portsmouth, N.H. Good morning, Ann Marie.

  • 10:51:12

    ANN MARIEGood morning. Thank you for taking my call, Diane.

  • 10:51:14

    REHMSure.

  • 10:51:16

    MARIESo I have a little bit of a radical proposal for the panel and for the country in general, and that is, what if we just obliterate the institution of marriage altogether?

  • 10:51:28

    RAUCHWell, you're talking to the author of the book "Gay Marriage: Why it's Good for Gays, Good for Straights, and Good for America," and it argues that marriage is a very, very good and important institution because it brings to the table so much more than a private contract can do. A marriage is not an agreement that two individuals make with each other. It's an agreement that they as a couple make with their community.

  • 10:51:54

    RAUCHAnd that means that all of those community recognitions and all of those tools of support and all of the responsibilities help bind the couple and create a stable family. I think that obliterating those institutional bonds that help shore up these families would be about the worst thing we could do for the American family.

  • 10:52:13

    REHMJonathan, you would agree that the court's ruling was not an overall endorsement of gay marriage. What do you expect the religious right and those who are against gay marriage to do going forward? Will there be an effort working against you as you try to move states in that direction?

  • 10:52:44

    RAUCHWell, it's early days, but it looks like conservatives are split. It looks like grasstops leaders want the issue of gay marriage to go away because they perceive they're on the losing side of it. Grassroots, especially religious conservatives, want to continue to carry the cause forward. They're saying they'll do that at the state level.

  • 10:53:04

    RAUCHThe grasstops are saying, good, do that at the state level. But they're also saying that they will continue to oppose all Republicans candidates in primaries who favor same-sex marriage. So they're going to try to hold the party hostage to a strategy of opposing gay marriage.

  • 10:53:22

    REHMAnd you're listening to "The Diane Rehm Show." Joan Biskupic.

  • 10:53:28

    BISKUPICYou know, I think we're going to see a lot of activity over the next two or three years, that we'll have that attention at the core of it. It'll be mostly in the states. And then perhaps Jonathan's example of Virginia will be back because that's a state that probably will not move away from a ban on gay marriage in the near future. And for that, it's pretty red, and that will come back.

  • 10:53:49

    FEINAlready in the Congress, Diane, there's legislation. One proposed an amendment to the Constitution to prohibit same-sex marriage. That was introduced yesterday. And...

  • 10:54:00

    REHMBy whom?

  • 10:54:01

    FEINI think it was Jeb Hensarling from Texas, I believe was the member.

  • 10:54:05

    RAUCHAnd surely that's not an amendment to re-legalize DOMA?

  • 10:54:09

    FEINNo. There was also -- this was a constitutional amendment. The one that Dick Cheney...

  • 10:54:13

    RAUCHSo we got two constitutional amendments so far.

  • 10:54:14

    IFILLBut we've already -- I thought we said Congress couldn't pass anything, so I'm sure that that's not...

  • 10:54:19

    RAUCHThey won't have to.

  • 10:54:20

    FEINNo, no, no. I don't think it'll enact it, but the second thing that's more viable is the provision of DOMA that authorizes states not to recognize same-sex marriages performed in other jurisdictions. There's an effort to abandon that provision in DOMA as well.

  • 10:54:34

    REHMI see. All right. Let's go to Tampa, Fla. Thea, you're on the air.

  • 10:54:41

    THEAHi everyone. I have a question framed within the immigration debate and with the repeal of DOMA. How is this going to apply with spouses who are gay that want to bring a foreign spouse in with a green card?

  • 10:54:54

    REHMJonathan.

  • 10:54:55

    RAUCHOnce again, all of these questions, we don't have answers yet. The regulations remain to be written, but the intention of the administration, it's saying, is to treat gays and straights equally, which means -- and this is a very important inequity that we are getting rid of in America, that you have thousands and thousands of gay people living effectively in exile because they cannot bring their partners and spouses into the United States. That will now be addressed.

  • 10:55:18

    FEINYes. And Sen. Leahy, who had an amendment to the immigration bill that would have abandoned the current prohibition upon same-sex couples coming into the United States, withdrew them because of the DOMA decision he said now is superfluous.

  • 10:55:31

    REHMSo, Sherrilyn Ifill, what's next for your organization?

  • 10:55:36

    IFILLWell, we've got two levels at which we're working -- well, three levels actually. One is a litigation strategy. I think Bruce Fein said earlier, we should remember the Voting Rights Act has not been repealed. There are many other sections to the Voting Rights Act that are quite viable and, in fact, Section 5 still exists. And so we are going to be engaging in some litigation action over the next few weeks and months using Section 2.

  • 10:55:58

    IFILLOne can still bring constitutional challenges to voting changes that we believe are based in intentional discrimination. It's worth, you know, remembering that in the last three redistricting rounds, Texas has been found to intentionally discriminate in their redistricting. So that's not off the table. Then, of course, there is the legislative response. We actually do think Congress can do something. We know the farm bill didn't pass but, you know, demographically speaking, farmers are not on the rise.

  • 10:56:21

    IFILLLatino voters are on the rise. And so these Congress people will have to be cognizant of protecting the rights of minority voters. And then just mobilization and organization, helping people understand what this means in their communities, in their town councils, in their school boards, in their water districts because that's the place where the real mischief, where the real discrimination happens.

  • 10:56:39

    REHMLast word, Joan.

  • 10:56:40

    BISKUPICThey're gone now, but they'll be back in October. This turn will start again. And the justices already have a race-based policy before with the Michigan ban on all affirmative action there that will be tested by the Supreme Court starting next term.

  • 10:56:52

    REHMJoan Biskupic, Sherrilyn Ifill, Jonathan Rauch, Bruce Fein, thank you all so much.

  • 10:57:00

    IFILLThank you, Diane.

  • 10:57:01

    BISKUPICThank you.

  • 10:57:01

    RAUCHThank you.

  • 10:57:02

    REHMAnd thanks for listening. I'm Diane Rehm.

  • 10:57:05

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn and Danielle Knight. The engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington, D.C. This is NPR.

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