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Impact of voting, marriage rulings spreads

The Supreme Court, acting swiftly to promote further review of voting rights under federal law, told lower courts on Thursday to take a new look at two Texas cases involving a photo ID law for voters and a new set of redistricting plans for the state’s delegation in Congress and for members of the two houses of its state legislature.

In both cases, the Justices wiped out lower court rulings that had refused to give legal clearance to the photo ID law and the new election districting plans.  The lower courts are now to apply the Supreme Court’s ruling on Tuesday in Shelby County v. Holder, (docket 12-96), striking down one key part of the Voting Rights Act of 1965.  Because the Supreme Court’s actions did not resolve the cases finally, the two Texas laws at issue will now remain in legal limbo, at least for a few weeks.

In a pair of other orders, the Court refused — for the time being — to get drawn further into the constitutional controversy over state power to limit or ban same-sex marriages.  One day after issuing two historic rulings on such marriages, the Court simply denied review of cases from Arizona and Nevada that posed tests of state laws that treat gays and lesbians less favorably than straight couples.

The constitutional fate of voting rights laws in nine states and a number of local governments around the nation has been put in deep doubt by the Court’s Shelby County ruling.   That decision nullified the 1965 federal law’s formula for determining which states and local governments must go through the unusual procedure of getting official approval in Washington before they may put into effect any new law or procedure on voting or elections.   The decision left the preclearance requirement formally intact, but in peril because of the lack of a formula for which jurisdictions must obey it.

With that formula (under the 1965 law’s Section 4) now legally dead, and with uncertainty about whether Congress will replace it with a new version, the duty of state and local governments already covered by the preclearance requirement (under the law’s Section 5) is open to serious question.

The Court might have at least started to answer that question had it granted full review of either one of the Texas cases — the voter ID case, Texas v. Holder (12-1028), or the redistricting case, Texas v. United States (12-496) — but it did not do that.  Instead, it vacated separate rulings by three-judge U.S. District Courts in Washington, D.C., and told those courts to look again at federal challenges to those laws.   In the redistricting case, the lower court was also told to consider a suggestion that the case is now legally dead (“moot”), because in recent days the Texas legislature has replaced all of the specific election maps that were at issue.

When the district courts take up the cases anew, the three-judge panels will have the option of ordering a new round of written arguments, on the impact of the Shelby County ruling, or proceeding on the basis of the cases as they stood when Texas filed separate appeals at the Supreme Court.

In the voter ID case, Texas had argued in the lower court that, if that law did not get preclearance under the 1965 law, then that law’s preclearance Section 5 should be struck down.   The district court had never reached that issue, though, because Texas asked for — and was granted — a delay on that point so that the state could go on to the Supreme Court on the preclearance issue alone.  Thus, the District Court will now have to decide whether to move on to that issue, as well as deciding how to sort out the impact of the end of the coverage formula.

If the redistricting case is declared moot because there are entirely new maps now in existence, that case could wash out as a further test of the impact of the Shelby County decision by the Justices.

Thursday’s orders by the Supreme Court came in the final round of actions it planned to take in the 2012-13 Term, with little action expected until a new Term opens in October.  The two Texas cases, and the others acted upon Thursday, had been held back by the Court until it decided major cases before it that could affect those pending cases.

The Court denied review Thursday in a total of ten pending cases that dealt with same-sex marriage.  Eight of those cases involved the constitutionality of the federal Defense of Marriage Act’s Section 3 — the provision on access to federal benefits that the Justices struck down on Wednesday.  Justice Elena Kagan did not take part in the action on four of those eight, because she had been involved in some way with those cases or related cases in the lower courts in her former role as U.S. Solicitor General.

However, the other two denied cases went beyond the DOMA controversy, and involved state laws on same-sex marriage.   The Court’s refusal to hear those cases could be interpreted as a signal that it is not ready to move on to the core constitutional question over whether gays and lesbians have a right to be treated equally in access to marriage itself, or to public benefits that go with marriage.

The Arizona case (Brewer v. Diaz, 12-23) was a plea by state officials for permission to enforce a law enacted by its legislature in 2009, taking away health benefits for same-sex state employees who were not married but were legally “domestic partners.”   The law accomplished that result by defining “dependent” for purposes of the benefits as “a spouse,” meaning a legally married wife or husband.

Since a voter-approved amendment to the state constitution limits marriage to “one man and one woman,” same-sex couples are not eligible to marry in Arizona, so the redefinition of “spouse” to exclude domestic partners shut out couples who were not eligible to marry.  The Ninth Circuit Court barred enforcement of that law, and the state had appealed, arguing that its law was actually neutral, and thus should satisfy constitutional demands for legal equality.

The Nevada case (Coalition for the Protection of Marriage v. Sevcik, 12-689) is a direct test of the constitutionality of a state constitutional provision that allows only marriages between a man and a woman — twice approved by the voters, in 2000 and 2002.  Eight same-sex couples seeking to marry in the state had challenged its constitutionality.

In November, a federal judge in Reno upheld the marriage limitation, finding that the voters had approved it for the “legitimate purpose” of protecting the institution of traditional marriage.   He based that part of his decision on a one-sentence Supreme Court decision in 1972, in the case of Baker v. Nelson, rejecting a constitutional challenge to a state ban in Minnesota on same-sex marriage.

The case has now gone to the Ninth Circuit Court, but the backers of the state amendment asked the Supreme Court to hear the case before the Circuit Court rules.   The Justices held the case until Thursday, and then denied it — as usual, without explanation.

In Justice Antonin Scalia’s dissenting opinion on Wednesday in the federal gay marriage case, he suggested that the question of the constitutionality of a state ban on same-sex marriage would soon reach the Court, “maybe next Term.”   He dissented from the ruling striking down part of DOMA.  Although the majority said in that ruling that it was only acting on DOMA, Scalia said he was “only guessing” but did think that this was only a “pretense” made until the “second, state-law shoe” is dropped later.


Recommended Citation: Lyle Denniston, Impact of voting, marriage rulings spreads, SCOTUSblog (Jun. 27, 2013, 11:32 AM),