Supreme Court 2013: Will Voting Rights and Gay Marriage Ever Be Back at the Court?


The end of June, which is sometimes called the Supreme Court’s “flood season,” saw the decisions of very high-profile cases regarding same-sex marriage, affirmative action, and voting rights, all of which are important, current civil-rights issues. The Center for American Progress, a progressive think tank aiming to “develop new policy ideas, critique the policy that stems from conservative values, challenge the media to cover the issues that truly matter, and shape the national debate” held a public event addressing the 2012-2013 Supreme Court term and what its decisions mean for the progressive community and for all Americans.

After welcome and introductory remarks by CAP leaders, the featured panelists shared their views on the court’s recent and important decisions, the trends of the court’s decisions, and Chief Justice John Roberts’ court as a whole. The discussion — moderated by Thomas Goldstein, publisher of SCOTUSBlog —included panelists Caroline Frederickson, president of the American Constitution Society; Sam Fulwood III, senior fellow at the Center for American Progress; Steven Shapiro, legal director of the ACLU; and Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. The panel discussion had virtually no points of contention. The panelists shared many of the same liberal views and added onto each other’s points with more details and examples rather than challenge one another’s arguments.

On the court’s decisions regarding the Defense of Marriage Act (DOMA) in U.S. v.  Windsor and California’s Proposition 8 in Hollingsworth v. Perry, Frederickson said that “the fact that we won is a substantial victory,” positing that the nation will never “go backward from here” on LGBT rights. The moral significance of the DOMA ruling, she claimed, is that there is no longer a defense for treating people as second-class citizens. Shapiro added that the country has seen tremendous change regarding LGBT issues in such a small amount of time, also conjecturing that the justices did not want to make a decision that would be “on the wrong side of history,” akin to the Dred Scott or Plessy v. Ferguson decisions. However, a significant issue remains: Few of the 1,138 statutes that apply to married couples specify whether the marriage is determined by the state in which couples marry, or the state in which couples reside – an issue when same-sex marriage law varies by state. Shapiro said that the Obama administration will likely address this issue and maximize the number of benefits applied to same-sex married couples.

Fulwood claimed that although public and political opinions regarding LGBT rights have changed dramatically in the past few years, attitudes regarding race have not. However, the Supreme Court has power in changing these attitudes, as Americans recognize with these same-sex marriage decisions that change is inevitable. Wydra added that Chief Justice Roberts is good at being “a forward-backward looking conservative,” like a “welcome mat for a ‘no trespassers’ sign.” He does this, she says, when justifying his opinion on the Voting Rights Act case, Shelby County v. Holder, by saying that “the South has changed; there has been progress” and on the affirmative action case, Fisher v. University of Texas at Austin, by saying that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, many people have criticized these as policy decisions as being outside of the court’s purview (that Congress should decide whether the Voting Rights Act law is still needed) and claimed that the Shelby v. Holder decision will likely lead to racial gerrymandering and voter ID laws that will act as barriers to ballot access.

On the Roberts Court as a whole, the panelists agreed that the courts sides with corporate interests and is very pro-business, while people who file for class action or bring Title VII employment-discrimination cases often lose. In fact, the Chamber of Commerce, the nation’s top business-advocacy group, has won 70% of its cases in front of the Roberts Court overall and 13 out of 16 cases this term.

The panel mentioned recess appointments, campaign-finance reform, and the enforcement of the Establishment Clause as potential issues for the future. Whether these issues will see the Supreme Court next term, and whether civil rights issues such as same-sex marriage and voting rights will be back at the court again soon, is unclear. What is clear, however, is that the nation is changing — and Supreme Court decisions are changing the nation.