Fifth Circuit Ruling on Texas Voter ID Shows Importance of Preclearance

A unanimous three-judge panel of the Fifth Circuit today ruled that Texas’s restrictive voter ID law adopted in 2011’s SB 14 violates Section 2 of the Voting Rights Act because it has a racially discriminatory effect.  This is a great victory for voting rights.

The Texas voter ID law had previously been struck down by a district court.  Judge Nelva Gonzales Ramos had concluded not only that the law violated Section 2, but that Texas had adopted it with the intent to discriminate, in violation of the Constitution.  The Fifth Circuit rejected her analysis of how to discern discriminatory intent, concluding that she relied on factors that should not have been considered, such as long-ago intentional discrimination and assertions by the law’s opponents.  The Fifth Circuit remanded the case for her to reanalyze that aspect of her decision using a narrower set of evidence.  If she reaches the same conclusion, the voter ID part of the law would be struck down completely as unconstitutional.  But even if she finds no intentional discrimination, Judge Ramos can still fashion a remedy for the Section 2 violation, although it could very well fall short of completely eliminating the voter ID requirement section of SB 14.

You might wonder why a bill passed in 2011 is at this state of litigation more than four years after it was adopted.  The answer lies in the Supreme Court’s notorious Shelby County decision from 2013 that gutted the VRA’s critically important preclearance provision, which had covered Texas.

In 2012, a three-judge district court refused to preclear the law, finding that it would have had a harmful effect on racial minorities.  That should have been the end of the story, with Texas unable to put the law into effect.  But Shelby County removed Texas from preclearance requirements, allowing it to implement the law despite its previous failure at preclearance.  That meant that its victims had to go to court to challenge the law, bearing the burdens of litigation and of proving their case, even while people across the state suffered from the law’s discriminatory effects, including during the 2014 elections.  In fact, more than half a million registered voters in Texas lack the proper ID required by the law.

Now, two separate federal courts have ruled that SB 14 violates Section 2 of the VRA, and the case still has further to go: Even if the state doesn’t appeal today’s ruling, the remand back to the district court means that more litigation is in store, and portions of the law may still end up going into effect, albeit with a less discriminatory impact.

Far more efficient and just would have been to allow the preclearance provision of the VRA to work as Congress intended.  Texas officials’ eagerness to implement this discriminatory law as soon as they were able to shows just how important the preclearance provision is in protecting the right to vote.

Tomorrow will be the fiftieth anniversary of the Voting Rights Act.  Today’s ruling is a reminder of the law’s importance.  It is also a great example of why Congress should pass the Voting Rights Advancement Act, which would not only restore the vital protections of preclearance consistent with the Supreme Court’s directive that any formula should be based on modern circumstances, but also make other critical improvements to the landmark law.

PFAW

Harry Reid Teaches GOP Basic Math and Civics

Senate Minority Leader Harry Reid stood up on the Senate floor this morning to remind Republicans of one of their basic constitutional duties as senators: to consider the president’s nominees for federal judgeships.

He pointed out the stark contrast with how the Democratic-controlled Senate processed judicial nominations in George W. Bush’s last two years:

So far this Congress, Republicans have confirmed only 5 judges. By this same point in the last Congress of George W. Bush’s presidency, under my leadership, the Senate had confirmed 25 judges. Republicans are being outpaced 5-to-1. And there are real repercussions when Republicans refuse to act. If there aren’t enough judges to hear the cases that are piling up, a vacant judgeship is declared a judicial emergency. At the beginning of the year, there were only 12 judicial emergencies that deserved priority attention.  Yet in the mere 7 months of this Republican-controlled Senate, that number has doubled, and is on its way to tripling. As of today, there are 28 judicial emergencies – including four judges currently pending on the floor.

Of course, as much as Republicans try to obscure it, the fact is that 25 ≠ 5.

Reid also explained how the GOP’s abdication of responsible governing is hurting the American people:

By neglecting to live up to their constitutional duty to provide “advice and consent” for the President’s judicial nominees, the Republican Leader and his party are denying justice for the American people. Federal courts depend on the Senate to do its job so justice can be dispensed in courtrooms across the country. But Republicans clearly have no interest in seeing courtrooms and judicial chambers adequately staffed.

Reid also slammed Arkansas Senator Tom Cotton for blocking a confirmation vote last week for five nominees to the Court of Federal Claims.  These are nominees who were approved unanimously by the Judiciary Committee last year and again this year to a court whose chief judge has urged the Senate to fill its vacancies so the court can handle its caseload.  Nevertheless, Cotton blocked the Senate from voting on the nominees, saying that the judges on the court are willing to carry the caseload themselves without new judges.  (Reid also mentioned yesterday’s report from CQ on how Cotton’s action seems to line up with the financial interests of a law firm he used to work for whose employees gave generously to his campaign.)

Courts matter.  So do the judges who are selected to serve on those courts.  Republicans are weakening our federal court system, even though our most important rights depend on being able to have our day in court front of a fair and unbiased judge.  Senator Reid is right to call on the GOP to do better by the American people.

PFAW

Yet Another Circuit Court Upholds ACA Accommodation for Religious Nonprofits

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.  Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.  (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.  The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA.  The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.  Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.  Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs.  But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning.  Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.  (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.  Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

PFAW Foundation

Toomey Apparently Fails to Press McConnell on Timing for Restrepo Vote

Third Circuit nominee L. Felipe Restrepo was approved unanimously by the Judiciary Committee last week, but Senate Majority Leader McConnell is expected to delay a confirmation vote unless Senator Pat Toomey intervenes on behalf of a nominee he says he supports.  Consistent with how Democrats in the Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in 2007, when Thomas Hardiman was confirmed just one week after his committee vote, Toomey ought to be pushing McConnell for a vote this month, before the August recess.

Toomey and McConnell are apparently trying to make Pennsylvanians think Toomey is doing that, but they have not actually stated anything of the sort.  Keep in mind that the key item Toomey is being asked to address is timing, with a vote this month.  Pennsylvania newspaper The Legal Intelligencer reports:

Toomey's spokeswoman, E.R. Anderson, said the senator has already approached McConnell.

“Sen. Toomey supports the nomination of Judge Restrepo for the Third Circuit,” Anderson said in an email to The Legal. “As part of his efforts on this issue, the senator has spoken directly with Majority Leader Mitch McConnell to emphasize the importance of getting Judge Restrepo confirmed.”

Don Stewart, a spokesman for McConnell, said that while a date for the vote has not yet been scheduled, “Sen. Toomey has been calling us, so it's on the leader's radar.”

Note that Toomey and McConnell omit any mention of timing.  Did Toomey ask for a prompt confirmation vote?  Did he urge McConnell to let the Senate vote this month?  Did he mention the precedent of confirming Judge Hardiman in 2007 just one week after he was approved by the Judiciary Committee?

Considering that timing is the crux of the issue, it is interesting that Toomey and McConnell’s characterizations of their communication both omit any mention of timing.

So will McConnell allow a vote this month?  If Toomey chooses not to press for a July vote, he’ll certainly be making deliberate delay by McConnell much easier.

PFAW

With Toomey's Help, Senate Could Confirm Restrepo Quickly

The Senate Judiciary Committee just held a long overdue vote on Third Circuit nominee Phil Restrepo of Pennsylvania.  To no one’s surprise, he has the committee’s unanimous support.  His nomination now moves to the Senate floor, where it is up to Mitch McConnell to schedule a confirmation vote.

So let’s review some of the reasons McConnell should let the Senate vote to confirm him quickly:

  • The vacancy Restrepo would fill has been designated a judicial emergency.
  • There’s a second vacancy on the same court, adding to the strain on the serving judges, as well as the parties before them.
  • Restrepo has the bipartisan support of his home state senators.
  • He has been vetted and approved unanimously by the Judiciary Committee.
  • The vacancy Restrepo would fill has been open for more than two years already.
  • He was nominated eight months ago, way back in November of last year.
  • The Senate needs to make up for lost time, since committee chairman Chuck Grassley refused to even hold a hearing for Restrepo until seven months after the nomination.  (Senator Pat Toomey’s collaboration with Grassley by withholding his “blue slip” made that delay possible.)
  • Restrepo would expand experiential diversity on the Third Circuit, becoming the first judge on that court to have experience as a public defender.
  • He’d be the first Latino from Pennsylvania on the Third Circuit.
  • Everyone on the ABA panel that looked at his qualifications agreed that he was qualified.  In fact, a substantial majority of the panel said he was “well qualified,” which is the highest rating.

Now let’s look at the reasons McConnell might have for refusing to hold a timely confirmation vote:

  • The nominating president is a Democrat.
  • The nominating president is a Democrat.
  • The nominating president is a Democrat.

It’s pretty clear that the reasons for a quick confirmation vote are a lot better than the reasons for delay.  But given McConnell’s appetite for obstruction, it’s equally clear that he is more likely to choose needless delay.

The person best positioned to help Restrepo is McConnell’s fellow Republican, Senator Toomey.  As noted above, despite his public statements praising Restrepo, Toomey collaborated with Grassley when the committee chair was looking for a way to delay the nominee’s hearing.  Appropriately enough, Toomey got slammed in the Pennsylvania press for this until he finally relented.

Then when faced with the knowledge that the committee would needlessly delay its vote by at least two weeks unless he intervened with Grassley, Toomey not only did nothing, he offered an amazingly lame explanation for his refusal to stand up for Restrepo.

It makes you wonder just how much Toomey’s statements of support are worth.

Toomey can do better.  He can talk to McConnell, who has every reason to be responsive to members of his caucus.  And while Toomey’s talking about the needs of Pennsylvanians, he can also remind McConnell how the Democratic-controlled Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in his last two years.

Like Restrepo, nominee Thomas Hardiman was a district court judge; he had been nominated to the federal bench by Bush earlier in the president’s term.  Like Restrepo, Hardiman was nominated to fill a judicial emergency.  And like Restrepo, Hardiman had the unanimous support of the Judiciary Committee.

And in March of 2007, then-Majority Leader Reid scheduled a confirmation vote just one week after the committee vote.

So is a confirmation vote for Restrepo this month too much to ask?  Perhaps the question is whether it’s too much for Pat Toomey to ask.

PFAW

On Judicial Confirmations, 4 ≠ 21

Politico is reporting today on how the Senate GOP is blocking President Obama’s judicial nominees:

The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts.

The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives.

As we’ve written before, to determine how fairly or unfairly Republican-controlled Senate is treating Obama’s circuit and district court nominees during his last two years in office, the fairest and most accurate comparison is with how the newly-Democratically-controlled Senate treated George W. Bush’s nominees during his last two years:

  • So far this year, the Senate has confirmed only four judicial nominees.  By this same point in 2007, the Senate had confirmed 21 of Bush’s judicial nominees.
  • Since the beginning of the year, circuit and district court vacancies have jumped from just 40 to 59, a nearly 50% increase.  In contrast, in 2007, vacancies dropped from 56 at the beginning of the year to 51 on July 1.  In fact, by the fall of 2008 the Democratic-controlled Senate had confirmed so many of Bush’s nominees that the number of vacancies got as low as 34.
  • Judicial emergencies have skyrocketed from 12 at the beginning of this year to 27 today.  In contrast, in 2007, emergencies dropped from 25 at the start of the year to 18 as of July 1.

When asked about the GOP’s slow-walking of judicial nominees, Republicans went into full avoidance and distraction mode, echoing talking points that Judiciary Committee Chuck Grassley has given before.  Politico reports:

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared to 276 for Bush at the same point in his presidency.

The following passage did not appear in Politico, but it would have been great if it had:

Grassley has not publicly turned beet red with embarrassment for taking credit for so many confirmations when, in fact, he and his party opposed even allowing the Senate to vote on an enormous percentage of them.  The GOP forced time-consuming cloture votes on 93 of President Obama’s judicial nominees, even though Republican senators voted to confirm most of them anyway.  The number is high not because of Republicans but in spite of Republicans.  And cloture votes only tell part of the story of the obstruction.  Although Senate Republicans did everything they could to gum up the works and prevent timely confirmation votes for President Obama’s nominees, they seem more than happy to take credit for their eventual confirmation.

Back to the real Politico article:

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

And here is how that paragraph might have appeared without the prism of Republican talking points:

By this time in 2007, the Senate had confirmed 13 judges left over from 2006 who were denied a vote during the lame duck not by Democrats, but by Republican Sam Brownback of Kansas.  The Senate had by this point in 2007 also confirmed an additional eight judges who had cleared the Judiciary Committee for the first time that year, a number that by itself is twice the number confirmed by the current Senate.

It is also unclear how mentioning last year’s lame duck confirmations makes the GOP look any better.  If Mitch McConnell was unwilling to schedule more than a mere four confirmation votes during the first half of the year, forcing nominees to wait month after month after committee approval before a vote, then it is hardly realistic to think that adding last year’s lame duck nominees to the mix would have done anything except increase the size of this year’s bottleneck.

The Republican talking points also don’t mention that all but three of the lame duck confirmations had unanimous Republican support.  Even though the nominees had been fully vetted, and even though Republican senators concluded that they were qualified for a lifetime position on the federal bench, they still filibustered most of them before voting to confirm them.  They apparently believed then and believe now that the judgeships these nominees filled should have remained vacant well into this year, even though the Senate was prepared to confirm them last year, and despite the harm that delay would have caused to Americans across the country.

But put all that aside.  At mid-year, here’s the short version:  The GOP-controlled Senate confirmed only four Obama judicial nominees in the first half of this year.  By the same point in 2007, the Democratic-controlled Senate had already confirmed 21 of Bush’s.

No matter how you slice it, 4 ≠ 21.

PFAW

A Liberal Supreme Court Term? Hardly.

In the last week, conservatives lost major cases at the Supreme Court on issues like fair housing, healthcare, nonpartisan redistricting, and marriage equality.  Some are questioning whether the Roberts Court is really all that conservative.  The New York Times’s The Upshot trumpeted The Roberts Court’s Surprising Move Leftward, writing that this term had a greater percentage of liberal decisions than any since 1969.

But this is no liberal court.  It hasn’t even been all that much of a liberal term, certainly not in the way that we saw decades ago.

Take the fair housing case, for instance: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  There was unanimity among all 11 circuit courts that had considered the issue that a practice that has an unjustified discriminatory impact can violate the federal Fair Housing Act even when a discriminatory purpose can’t be proved.  Congress had amended the law with this type of “disparate impact” clearly in mind.  Ordinarily, under these circumstances, the Supreme Court never would have heard a case claiming that the Act does not allow for disparate impact cases.  But this is the Roberts Court, and four Justices (the minimum needed to grant certiorari) were clearly hungry to change the law.  Rather than moving the law in a progressive direction, the 5-4 result simply fought off a fringe right-wing legal attack against a long-established civil rights law.  Even so, this case was only one vote away from going in the other direction.

Similarly, King v. Burwell – the Affordable Care Act subsidies case – hardly marks new frontiers in progressive jurisprudence.  The plaintiffs’ attack against the law was laughably weak, and there was no circuit split in the lower courts to resolve.  That the Supreme Court took this case at all was both absurd and ominous.  While the Court rejected the anti-Obamacare activists’ claim 6-3, it is hard to imagine an earlier Court not ruling 9-0, or even refusing to take the case in the first place.  The majority opinion left the law exactly as it was intended and understood when it was passed.

Yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upholding that state’s nonpartisan redistricting commission shows the same dynamic.  Arizona voters adopted this reform 15 years ago, in response to the damage done by partisanship in the drawing of district lines.  But conservative politicians sought to undo this reform and launched a constitutional attack they thought would find favor in the Roberts Court.  They lost by one vote yesterday, as a 5-4 majority upheld the status quo.

Similarly, in Williams-Yulee v. The Florida Bar, this term saw the Court entertain a conservative attack against a common-sense campaign finance law for judicial elections, one that prohibits state judicial nominees from directly soliciting campaign contributions.  Since the Roberts Court has gone out of its way to undo or undermine longstanding legal precedent supporting efforts to regulate money in politics, many thought the challenge would be successful.  However, by one vote, the Supreme Court chose to uphold the Florida law, one that applies in many other states, as well.

The Court’s four moderates are sometimes able to garner a majority to reject right wing attacks on the law.  That is a far cry from the liberal Court terms of an earlier era, when the Justices expanded the frontiers of liberty and equality, making the stirring promises of the Constitution real for millions of people.  Those were decisions that empowered Americans to vote and effect their will through fair elections, that recognized the essential dignity and liberty of the individual, and that ensured that civil rights statutes were interpreted in ways to carry out Congress’s intent.

So no, the Supreme Court did not just complete a liberal term.  Progressives breathed a sigh of relief after a number of cases this term when the Court didn’t accept invitations to lurch even further to the right.  And the Court did take one important progressive step in affirmatively ruling for marriage equality, although only by a 5-4 vote.  But there is much more work to do if we really want to see a liberal Supreme Court term.

PFAW Foundation

Three Final 5-4 Rulings Show Importance of Supreme Court in 2016 Elections

The Supreme Court issued its last three opinions of the term this morning.  All three were important.  All three were decided 5-4.  And all three are reminders that no matter what issue you care about, the Supreme Court is a critically important issue in the 2016 elections.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Justice Ginsburg wrote for a 5-4 majority upholding that state’s voter-passed redistricting reform, in which a commission rather than the state legislature resets district boundaries after each census.  She wrote:

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” … The Elections Clause does not hinder that endeavor.

In Michigan v. EPA, Justice Scalia wrote for a 5-4 majority striking down EPA regulations of mercury and other toxins emitted from certain types of electric power plants.  EPA studied the issue and determined that these emissions needed to be regulated.  Then, in a separate proceeding, it adopted regulations, carefully taking the costs of regulating into consideration in crafting its rules.  Notwithstanding that, the five conservative Justices ruled that the EPA had been required to consider costs at the start, in its initial decision on whether regulating these particular emissions was appropriate and necessary.

In Glossip v. Gross, the Court, in an opinion written by Justice Alito, ruled that it is not unconstitutionally cruel and unusual to execute someone by lethal injection using midazolam as the initial drug.  That particular drug is supposed to ensure that the person doesn’t feel burning, searing pain when the follow-up drugs causing death are given.  There is evidence that the drug does nothing of the sort, so that people endure what Justice Sotomayor in her dissent calls “the chemical equivalent of being burned at the stake.”

These decisions join a host of other 5-4 rulings this term, including

And let us not forget some of the most notorious 5-4 cases of recent years:

  • Citizens United (opening the flood gates to untold amounts of money in politics);
  • Hobby Lobby (upholding a corporation’s “religious liberty” right to exempt itself from a law protecting women’s health);
  • Shelby County (striking down the heart of the Voting Rights Act).

By 2018, four Justices will be in their 80s, meaning there may be several vacancies during the next president’s term.  Any replacements could cement a hard-right conservative majority that would extend cases like Citizens United and Shelby County and seek to limit the rights of LGBT people that were gained in Obergefell.  Or we could see the end of what our affiliate PFAW Foundation Senior Fellow Jamie Raskin has called The Citizens United Era, so the Court will no longer bend logic and twist the law in order to rule in favor of powerful and corporate interests.

No matter what issue you care about – money in politics, LGBT equality, voting rights, women’s health, the environment, defendants’ rights, the death penalty – the president elected in 2016 will make all the difference, as will the Senate that will either confirm or block the president’s nominees.

On Election Day, it is the Supreme Court that will be on the ballot.

PFAW

A Historic Day for Liberty, Equality, and America

Wow.

The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation

Protecting Civil Rights from Judicial Attack

To many people’s surprise, the Supreme Court this morning didn’t gut the Fair Housing Act in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  Many had feared the far-right conservatives would rule that a practice that has an unjustified discriminatory impact could no longer be judged to violate the FHA unless a discriminatory purpose could be proved.  Such an interpretation would have gone against congressional intent to create a robust legal tool to bring fair housing to everyone in the nation, all 11 circuit courts that have considered the question, and the interpretation of the law by the Department of Housing and Urban Development.

Despite the absence of a circuit split, and despite the fact that Congress had amended the FHA after those judicial decisions with the clear assumption that such “disparate impact” cases would be generated, the Roberts Court had taken identical cases in 2011 and 2013, but the parties settled before the Court could rule.  But at least four justices – the minimum required for the Court to agree to hear a case – clearly wanted to address this issue.

And now we can be pretty sure who they were: today’s four dissenters (the Chief Justice, and Justices Scalia, Thomas, and Alito).

Fortunately, they did not prevail.  Writing for the majority, Justice Kennedy highlighted the vital role played by the Fair Housing Act, both at the time of its passage in 1968 and today, in eliminating “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”

Much progress remains to be made in our Nation’s continuing struggle against racial isolation.  …  The FHA must play an important part in avoiding the [1968] Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Kerner Commission Report 1.  The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.

For nearly 50 years, the Fair Housing Act has been a critical tool for eliminating discrimination and expanding opportunity to all.  After today, it will remain so.

So much was at stake in this case, and this morning’s 5-4 ruling could easily have gone the other way had one Justice voted differently.  That is much too close for comfort.  Indeed, this second anniversary of the 5-4 Shelby County decision gutting the heart of the Voting Rights Act reminds us that those who value equality and civil rights are too often on the losing side of these 5-4 cases.

PFAW Foundation