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Justice in Paradox

Author: Julia E. Sweig, Nelson and David Rockefeller Senior Fellow for Latin America Studies and Director for Latin America Studies
July 3, 2013
Folha de Sao Paulo


Originally published in Portuguese on Folha de Sao Paulo:

Last week the United States Supreme Court issued two wildly divergent rulings, one on civil rights and one on gay marriage. The 1965 Voting Rights Act became law under Lyndon Johnson, the greatest civil rights president since Abraham Lincoln. The heart of the law sought to subject states that practiced egregious voter suppression to federal scrutiny of their election practices. The intended effect was to allow all voters to vote free from the racist maneuvers to prevent black votes that had become rampant since the 19th century and that eventually fueled the civil rights protests of the 20th century.

Despite significant achievements since, voter suppression at the state and local level, especially in districts with heavy African-American and Latino populations, remains a problem in the United States. But the Court's conservative majority ruled, despite congressional reauthorization as recently as 2006, that the law has run its course.

In the case of gay marriage, the Supreme Court ruled that the 1996 Defense of Marriage Act (DOMA), passed under and endorsed by Bill Clinton, could not deny federal benefits to couples married under state laws that legalized gay marriage. The court also found that a lower court ruling by a state court in California against the legality of a referendum against gay marriage –yes, this is confusing—ultimately had final standing. In other words, in a technical sense in both the Voting Rights Act ruling and the two gay marriage rulings, the court said that the federal government should have a lighter touch when it comes to activities regulated by state governments. But American history suggests that too much autonomy for the states can threaten the Constitution's dedication to equal rights for all Americans.

The concept of gay rights as civil rights is relatively new in American public life. The euphoria over how quickly—under a decade-- gay marriage has moved from the unheard of to the almost commonplace is fully justified. And it speaks to the fairness that the Constitution was designed to promote and protect. And yet within a twenty-four hour period the court also essentially nullified one of the most important achievements in civil rights history.

Writing for the minority, those justices who opposed the Court's ruling over the Voting Rights Act, Justice Ruth Ginsberg's often scathing dissent made the very simple point about the ongoing relevance for the Voting Rights Act: "Just as buildings in California have a greater need to be earthquake­ proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination." Next month marks the 50th anniversary of the March on Washington, the historic protest led by Martin Luther King Jr, which gave the White House and the Congress the public show of support needed to enact arguably the single most far reaching political reform of the 20th century. Will Americans protest again?

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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