The Norman Transcript

Nation/World

June 30, 2013

Ending with a flourish

(Continued)

WASHINGTON —

The second gay marriage case, involving California’s constitutional ban on same-sex marriage, also produced something of a compromise. It ended in a technical, legal ruling that clears the way for same-sex unions in California, but said nothing about a constitutional right to marriage.

The justices also delivered important victories for business in cases that limited class-action claims and lawsuits over international human rights abuses, allowed authorities to collect DNA from people they arrest, ruled that human genes cannot be patented and called into question agreements between pharmaceutical companies that delay the entry of cheaper generic drugs on the market.

The timing of the voting rights and gay marriage decisions was not planned, but was perhaps inevitable, because the court’s toughest cases typically are the last ones resolved before the justices take a long summer break.

Last Tuesday, Justice Ruth Bader Ginsburg wondered what had happened to the court’s “usual restraint” in the voting rights case. On Wednesday, Justice Antonin Scalia said society’s debate about marriage should “be settled democratically rather than by judicial command.”

Paul Clement, a former Bush administration official who argued that the federal marriage law should be upheld, said what links those two cases, apart from Kennedy’s vote, is the idea that Congress did not give sufficient respect to states.

It subjected some states to strict federal oversight of elections based on old data rather than current conditions, Roberts said in the voting rights case. Congress made second-class citizens of same-sex couples in denying them federal benefits even after states extended them the right to marry, Kennedy said in the gay marriage case.

“It’s certainly the thread that united the votes of Justice Kennedy in the DOMA case and the voting rights case,” Clement said.

Roberts first expressed reservations about the voting rights law when he was a young lawyer in the Reagan White House. A debate was then taking place in Congress about extending the law’s key requirement that states with a history of racial discrimination in voting get Washington’s approval before changing the way they hold elections. This “preclearance” provision, often called a crown jewel of civil rights law, was enormously effective in heading off the creative ways some states devised to keep minorities from voting.

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