Supreme Court

The U.S. Supreme Court issued three controversial rulings in the last days of its term. Together, they paint a confusing picture of the justices’ thinking.

In a 5-4 decision, the court struck down the Defense of Marriage Act – commonly referred to as DOMA – and thereby ended the ban on federal recognition of gay marriages. Same-sex married couples married are now entitled to the same treatment under federal law as other married couples.

It also refused to rule on a lower court’s finding that California’s Proposition 8 is unconstitutional. That had the effect of reinstating gay marriage in that state.

In the third ruling, the high court gutted the most consequential civil-rights law in U.S. history. It struck down the part of the Voting Rights Act of 1965 that required federal pre-approval for changes to voting laws in states with histories of pervasive racial discrimination.

All three will have meaningful effects, but what is remarkable is the contradictory paths the justices took to their conclusions. The first ruling was tied to the Bill of Rights. The second was procedural. The third was nothing more than “because we say so.”

The DOMA case concerned a New York woman named Edith Windsor whose wife died in 2009. Because the federal government did not recognize her marriage she had to pay about $360,000 in taxes that would not have been demanded of a surviving spouse.

Writing for the majority, Justice Anthony Kennedy laid out how that law unfairly harmed homosexuals. He concluded that the relevant portion of DOMA violated the Fifth Amendment, which says, among other things, that no person shall be “deprived of life, liberty or property, without due process of law.”

That is pretty straightforward. Losing $360,000 is an obvious loss of property for no reason beyond disapproval of her sexual orientation.

In the California case, a ballot initiative banning gay marriage was approved by the voters, but overturned by a trial court as unconstitutional. An appeals court agreed. But state officials had refused to defend the law and the Supreme Court said the backers of the initiative who brought the case lacked standing to do so.

The court sent the case back to the appeals court “with instructions to dismiss the appeal for lack of jurisdiction.” The effect is the trial court’s ruling stands and Proposition 8 is done. California will soon resume issuing marriage licenses to same-sex couples.

That too was a 5-4 decision, although with a different line-up than the DOMA case, and it turned on legal niceties not constitutional rights. But the question of standing is real and the fact that the state would not defend the proposition has meaning.

The voting-rights case was another matter altogether. For decades conservatives have railed against “activist judges” substituting their opinions for those of the legislative branch. As Chief Justice John Roberts once said, his job is “to call balls and strikes and not to pitch or bat.”

But in this case he was not only batting he was playing the whole infield. Writing for the majority, Roberts wrote that the law is “based on 40-year-old facts having no logical relationship to the present day.”

That may well be true, but so what? The 14th and 15th amendments explicitly give Congress that power and Congress not only passed the Voting Rights Act, it has extended it four times. The last time, in 2006, the Senate approved it 98-0.

The decision came down to the simple fact that five justices disagree with how Congress has handled what is clearly a congressional responsibility. How is that not “legislating from the bench”?

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