Warning: The US Supreme Court’s recent decisions about civil rights and equal treatment pose a risk of severe whiplash.
On the final day of the court’s term last week, the justices embraced a strong vision of equality as they struck down the federal Defense of Marriage Act (DOMA), which prohibited the US government from recognising same-sex couples’ marriages. Explaining why the court invalidated the law in the case of United States v. Windsor, Justice Kennedy wrote that "the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage", and that this purpose and effect were both unlawful.
Earlier in the week, though, the court offered a different response to an equality question when it evaluated the University of Texas' consideration of race in its undergraduate admissions process. Although the decision did not put an end to race-based affirmative action, as many advocates had feared, the court took pains to stress its doubts about the constitutionality of most affirmative action programs. Just ten years earlier, the court had clarified that the University of Michigan Law School could take account of applicants' race to serve the compelling interest of having a diverse student body. In its new decision, the court put most of its effort into underscoring that schools’ affirmative action plans will be subjected to the strictest, most skeptical form of judicial scrutiny.
Even harsher consequences for the future of equal treatment in the United States will flow from three other rulings issued in the last week of the court’s term. In one case, Shelby County v. Holder, the court struck down a central provision of the 1965 Voting Rights Act that prohibited states and local governments from fostering race discrimination in the voting process; in two more (Vance v. Ball State University and University of Texas S.W. Medical Center v. Nassar), it limited the protection offered by employment discrimination laws. These rulings will make it harder for people to challenge discrimination at the polls and at work, yet a majority of the court seemed to suggest that its narrowing of equality protections was the only right result.
In short, the court’s equality decisions from the last week of its term seem to run simultaneously in two different directions.
What can we make of this seemingly contradictory set of decisions that embraces some forms of equality but rejects others, especially when it seems to be an about-face from the court’s previous practice? After all, in the 1980s, the court derided a gay man’s privacy rights claim as "at best facetious" when he tried to challenge Georgia’s sodomy law but also upheld the Voting Rights Act and broadened the reach of employment discrimination laws.
Taken together, the recent rulings signal a severely constrained and deeply troubling understanding of the Constitution’s equal protection guarantee. DOMA was doomed not because a majority of the justices are particularly sympathetic to the discrimination suffered by gay people - though they might well be - but instead because the statute so openly and deliberately singled out a group of people for a legal burden. Like the two other antigay laws the court has struck down (Colorado’s antigay amendment in 1996 and Texas’s "homosexual conduct" law in 2003), DOMA did not hide its hostility. Indeed, the House of Representatives had proudly highlighted the law’s "moral disapproval of homosexuality". And, as the court observed last week, DOMA’s "avowed purpose and practical effect . . . are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States".
In other words, DOMA was a "discrimination of an unusual character", as Justice Kennedy wrote, a type of discrimination that remains, appropriately, unacceptable to most members of the Supreme Court. Perhaps back in 1996, Congress thought it could get away with such glaring hostility because the idea of marriage for same-sex couples was extremely unpopular. Even then, though, the court’s equal protection rulings rejected this sort of open aggression on the grounds that "a bare congressional desire to harm a politically unpopular group cannot" justify discrimination.
With this doctrine in force, we can expect that remaining antigay marriage laws will eventually fall, as DOMA did. Courts will likely strike down many of them. But legislators might increasingly take the initiative to authorise marriage equality, as they already have in some states, realising that defending same-sex couples’ exclusion from marriage is a losing and expensive constitutional battle.
In the voting rights context, however, the discriminatory laws at issue do not name their targets as explicitly as DOMA did. As a result, the future does not look so hopeful in front of a court that appears to be troubled primarily by explicit forms of discrimination. No legislature today would dare impose openly race- or ethnicity-based voting restrictions in the way DOMA imposed restrictions on gay people. But numerous state legislatures have enacted other measures, like voter ID laws, that are cloaked in neutral language but have the effect of burdening racial and ethnic minority communities. And, following the Voting Rights Act ruling, many states will have an easier time putting these laws in place.
A similar theme emerged from last week’s employment cases. One of the decisions makes it harder for employees to prove they have been retaliated against for complaining about discrimination. The other makes it harder for employees to win discrimination suits when they have been harassed by someone who has power over them in the workplace but does not fit the Supreme Court’s newly narrowed view of who counts as a "supervisor". As Justice Ginsburg observed in her dissent in the harassment case, the majority’s analysis ignores what "anyone with work experience would immediately recognise," which is that employees with authority to direct their colleagues’ daily activities can use that authority to harass coworkers, even if those employees do not have a supervisor’s formal power to hire and fire.
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Unquestionably, the court’s employment rulings will enable more discrimination against women and members of racial minorities at work just as the Voting Rights Act ruling will open new doors to election laws with discriminatory effects. Yet because none of these cases presented the sort of explicit discrimination touted by DOMA, the justices could more easily disclaim responsibility for the anti-equality consequences of their rulings.
In short, the court’s equality decisions from the last week of its term seem to run simultaneously in two different directions. Explicitly hostile laws will be stopped in their tracks - perhaps because of an underlying sense that their overt discrimination is embarrassing to the nation. But where hostility plays out behind the scenes, as in a neutral-sounding voting restriction that has a discriminatory effect or an employment action that keeps its discriminatory motive well hidden, inequality remains alive and well. The cure? More judicial attention to what 21st century discrimination really looks like. With that, in the coming years, these subtle but also damaging forms of inequality may also, eventually, be brought to a full stop.
Suzanne B Goldberg is Herbert and Doris Wechsler Clinical Professor of Law; Director, Center for Gender and Sexuality Law, Columbia Law School.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.