This case features a lot of disagreements between the majority and the
dissent. They disagree on evidence of discrimination and on the
relevance of original data on discrimination that brought 9 states under
its orbit, for example. I'd like to touch on one major disagreement —
deference to Congress — and discuss the implications for the upcoming
DOMA and Prop 8 decisions. In Shelby County, the majority did
not defer to Congress; the liberals think they should have. But in the
case of DOMA, it is presumably the liberals who do not want to defer to
Congress and the conservatives who would. How can we explain that
seeming intellectual dishonesty?
Our previous discussions of the levels of scrutiny are bound up with this topic: the higher the scrutiny level or the more searching review we give, the less deference we give to those who passed the law.
As Justice Ginsburg said in her Shelby County dissent: "When confronting the most constitutionally invidious form of
discrimination, and the most fundamental right in our democratic system,
Congress' power to act is at its height." And, by implication, courts should defer to that power. Congress overwhelming reauthorized the VRA in 2006, based on troves of data and information and extensive hearings and analysis. Justice Ginsburg's summary of the evidentiary basis for Congressional re-authorization took nearly 1/5 of her entire opinion!
Both what the VRA is meant to do and the basis upon which it was passed stands in stark contrast to the reasons, goals, and bases for DOMA and Prop 8. DOMA is an example of Congress institutionalizing "invidious discrimination," not trying to solve it. DOMA was passed with scant hearings and no evidence; the VRA was passed and reauthorized multiple times, each time with volumes of evidence and extensive hearings. And when Congress acts to discriminate among different groups, its power is at its nadir, thus entitling it to little, if any, deference. The same thing is true for the popular vote in California's Prop 8: when voters are moved to discriminate between different groups on the basis of status alone, that vote is entitled to little deference from the courts.
Shelby County is a bad decision for equality, but one that should not justify deferring to Congressional judgment in DOMA or California voters' judgment in Prop 8. The laws are too different; in fact, they are opposites. The conservatives got it wrong in the VRA case and they had enough votes to transform their error into law. That will not be the case tomorrow.
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Ari Ezra Waldman is the Associate Director of the Institute for
Information Law and Policy and a professor at New York Law School and is
concurrently getting his PhD at Columbia University in New York City.
He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. Ari writes weekly posts on law and various LGBT issues.