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Silver Linings in Court Decisions

The opinions expressed by columnists are their own and do not necessarily represent the views of

As I often say, "OK, I get it." People have very passionate views both on the value of the Voting Rights Act and its past requirements of certain states and on the issue of same-sex marriage. Polls show people split on the issues. Delving into the merits of the central issues involved in all of the major decisions handed down by the Supreme Court on these matters will obscure a valuable silver lining for devotees of our constitutional framers.


In the instance of the Voting Rights Act, the court in essence said that to single out certain states based on transgressions many decades old, without re-examining whether such unique treatment is still justified today, violated the rights of the citizens of those states. The court basically declared that the VRA still stood to provide equal protection under the Constitution, but that if certain states are to be required to go extra steps in preserving rights, then a modern criteria must be created by the Congress.

While the decision in that case was less explicit as to any one constitutional basis for the majority's ruling, what came across loud and clear was a general reinforcement of an interpretation that states have their own right to write laws and create political boundaries.

The court did not establish some affirmation of the old "States' Rights" argument used by lawyers and politicians to counter the civil rights movement in the 1960s. But the court reaffirmed the concept that states are presumed to know what is best and fair in implementing equality, which is still required by the law, and should be treated differently only by determination of Congress based on the facts of 2013, not 1964.

While declaring the Defense of Marriage Act unconstitutional, the court focused on the rights of individuals in individual states, essentially saying that a state that does not recognize same sex-marriage has no responsibility to enforce the laws of another state where same sex marriage is legal. But the court asserted that states that do recognize same-sex unions may do so.


Of course what many don't like to admit is that any negative reaction they might have to any one of these decisions is actually a reaction to political positions, not the court.

In the case of the Voting Rights Act, if the Democrats controlled both the House and Senate with President Obama in office, there would still have been ruffled feathers from the ruling. But immediate congressional action would have placed the same states, and perhaps a few others, under the additional microscope of the Justice Department, basically restoring the law as it stood. But because Republicans hold the House and have enough votes in the Senate to tie things up, current political power upsets those opposed to the decision.

Ironically, those opponents may find their silver lining politically. They may well use this issue as one to increase minority voting participation across the nation in off-presidential year elections, which could be helpful to Democratic contenders.

As to same-sex marriage, again politics drives much of the reaction. Because some states have a view that such civil unions or marriage should be recognized, those opposed realize that they are unlikely to overturn such laws in those locations. The best they can do is fight their passage elsewhere.

Again to those upset with the two decisions related to same-sex marriage, there may be a political silver lining, particularly in states where opinion weighs more heavily against such unions. It would not be unexpected to find this becoming a litmus test in the more conservative-leaning states, and it could have an impact in states where Democrats otherwise would have a fighting chance against Republicans.


In the end, the ethical and religious arguments will come as they will, and from eloquent and passionate voices on all sides.

But the silver lining from these rulings is that a voice in opposition of the Voting Rights Act decision yet in favor of the other court rulings must then defend their individual state's new constitutional right to adopt and enforce same-sex marriage. And those most adamantly opposed to the court's decisions as to same-sex marriage in states that allow for such but who support the voting rights decision must also find an argument against the rights of those particular states to adopt same-sex unions as law.

Of course most will find ways to draw a distinction, but with the concept of some new respect for the states as part of the debate.

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