by Craig Klugman, Ph.D.
This has been an exciting week in the world of public policy in the United States. During the last week of its session, the U.S. Supreme Court often releases rulings on its biggest cases. And this year is no exception. In the last two days the Court has ruled on voting rights, gay marriage in California, and the federal Defense of Marriage Act. The theme that ties all three of these high profile cases together is civil rights and liberties.
On Tuesday, the Court struck down sections of the voting rights act that required certain jurisdictions with a history of voter discrimination to have pre-approval by the Department of Justice before making any changes to voting laws and rules. The major opinion, written by Chief Justice John Roberts, says that the data used to determine which states or areas are required to be reviewed is based on old data that no longer applies. The opinion also states that this requirement treats states differently, which violates the 10th Amendment (which grants states those rights not claimed by the federal government). What this ruling ignores is that history has a tendency to repeat. Within hours of the ruling, my home state of Texas announced the implementation of a Voter ID law and a redistricting map, both of which had previously been found to be discriminatory against members of minority groups. In recent years, other states have tried to limit polling stations and to reduce voting hours in minority districts. While many pundits have suggested the ruling is an attempt to tell Congress to pass some new laws on this issue, the inability of this Congress to pass anything means that the one tool available to ensure that minority voters had their civil rights protected has passed into history.
On the other hand, in two cases dealing with same-sex marriage, the Court chose to uphold and even expand civil rights. After California had begun same-sex marriages in 2008, a public referendum approved Prop 8 that banned such marriages. This created two-tiers of citizens in the LGBT community—those who had legal marriages and those who could not marry their same-sex partner. Two couples sued to challenge the constitutionality of the law. Two lower courts found that Prop 8 was indeed unconstitutional, and the State of California chose not to defend the act. A group of private citizens decided to defend it and the Supreme Court decision determined that this group did not have legal standing to do so. The result is that Prop 8 is essentially struck down and same-sex marriages may resume in California (because of the level of the court that made the original ruling, it is not certain whether the right will apply to the entire state or just that one district). The ruling has no impact beyond California’s borders.
The more influential case was ruled on in United States v. Windsor. In this case, Edith Windsor paid substantial taxes when she inherited the estate of her same-sex spouse in 2009. Windsor sued for a refund of these taxes saying that if the couple had been a man and a woman, instead of two women, then she would not have owed taxes. The Supreme Court found the section of the federal Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman to be unconstitutional. The Supreme Court stated that DOMA infringed on state rights, where the right to grant and define marriages legally lays. Justice Kennedy in his opinion stated that the “demonstrated purpose” of the law was to treat same-sex unions as “second-class marriages.” Kennedy acknowledged the burdens this law created on same-sex families. In other words, the purpose of the law was to discriminate and violate the civil rights of a portion of the population.
While this is an important case for civil rights, it is a limited change. This ruling will mostly affect same-sex married couples in the 12 states (13 with California) and District of Columbia that recognize same-sex marriage. For those in the 37 states that ban such marriages, there will likely be no change. And for those 4 states with civil unions or domestic partnerships instead of marriage, there are few changes. The Court also did not strike down the portion of DOMA that allows states to not recognize a same-sex marriage in another state. This leaves an inequality since states must recognize heterosexual marriages from other states.
Why is this important in a bioethics arena? For one, there are 1,138 rights and protections offered federally to legally married spouses ranging including taxation, immigration, social security, employment benefits, heath benefits, and pensions. Equality and civil rights are the basis of good health and should be of prime importance in the bioethics community. Health defined as providing an opportunity for human flourishing is contingent on all humans having basic rights and being treated equally. Also consider that justice is one of the four principles and is at the core of public health.
To fully disclose, this issue was one near and dear to me. I currently live in a state that has a history of voter discrimination and that also constitutionally bans same-sex marriage. Since my partner and I married in Massachusetts in 2010, we have been considered roommates in the state of Texas. The federal recognition of my civil rights is powerful and a good first step, but the fact that nothing will change in the legal rights my spouse and I have in our state, shows how much further we have to go.