Conceptions of equality determined this week’s blockbuster decisions by the Supreme Court.
There’s formal equality, expressed in the 14th Amendment’s constitutional provision of “equal protection of the laws.” Formal equality dictates that gay couples receive the same treatment as straight couples on marriage, white students fall under the same criteria as black students in college admissions, and Southern states experience the same federal oversight of voting as the rest of the nation.
Then there’s actual equality, the recognition that no matter a group’s legal standing, historical patterns of discrimination and current definitions of power influence the treatment of different people. Achieving actual equality means that governmental power often must be used to benefit historically wronged groups.
A sharply divided Supreme Court came down on the side of formal equality.
On affirmative action, the high court declined to issue a ruling on the program’s constitutionality, but its decision jeopardizes the decades-old consideration of race to benefit underrepresented groups in education and employment.
On voting rights, the justices gutted the 1965 Voting Rights Act, ruling that Congress can no longer use criteria dating to the 1970s, on patterns of discrimination, to determine areas requiring federal oversight. Justice John Roberts in the majority decision cited Philadelphia, Mississippi, and Selma, Alabama, two cities in which people died registering voters but which both now have African American mayors, as proof of racial progress in the Old South.
The Court’s ruling came down on the side of formal equality, arguing that the Voting Rights law has worked because African Americans vote and are elected to office. Adherents of actual equality believe progress has occurred only because the law permits federal supervision to insure equality and that withdrawal of scrutiny may lead to a return of discriminatory practices.
The picture on gay marriage is a bit more muddled as the Supreme Court chose a middle ground, extending formal equality for gays and lesbians by overturning the Defense of Marriage Act and declining to decide the California case, thus allowing same-sex marriages in that state. The Court refused to issue an opinion on whether there is a constitutional right to gay marriage, which would have been a blow for actual equality.
It is something of an historical oddity that both the decisions on the voting rights case and on DOMA hinged on the 14th Amendment’s equal protection clause. That amendment, adopted after the Civil War to protect the freedmen, wound up helping gays but not blacks.
The majorities in these cases seem to be saying that African Americans have formal equality under the law, so they as a group no longer need governmental assistance with programs of affirmative action and federal scrutiny of voting patterns. Since gays have yet to achieve formal legal equality, the high court cobbled together a majority to overturn DOMA.
The Supreme Court is the final word on cases of constitutional interpretation. Yet future courts could rule differently. No doubt, the high court will be asked to review implementation of federal equality in same-sex marriage. For example, what happens to same-sex Social Security beneficiaries who were legally married in one state but reside in another that does not recognize such unions? Might a future court rule that gay unions fall under the “Full Faith and Credit Clause” of the Constitution, which deems that the laws of one state must be respected by all the states?
The power of demography and the evolution of social values ultimately may decide issues the Court is loath to adjudicate. In the South, for instance, a dramatic increase in the Hispanic population eventually may evict whites from power, foreclosing attempts to hamper minority voting.
Rapidly changing attitudes to gay marriage may result in the political system resolving same-sex unions. Chief Justice Roberts cited politics when the case was argued. “As far as I can tell,” he told a lawyer challenging DOMA, “political figures are falling over themselves to endorse your side of the case.
The history of the United States has bent towards greater equality for more groups. When the nation was founded, only white men of property could vote. Slowly, but inexorably, the vote has been extended to the propertyless, to African Americans, to women, and to others.
Similarly, social attitudes have evolved, with once despised groups gaining acceptance.
The Supreme Court may be the highest court in the land, but it can’t overrule history.