JEFFREY BROWN: And finally tonight, a July 4 view of America through last week’s landmark decisions at the Supreme Court.
Two were seen as victories for gay rights advocates, and another struck down a key provision of the 1965 Voting Rights Act.
For some long-view perspective on the court and its rulings, yesterday, I sat down with four historians.
And joining me are Ellen Fitzpatrick, political historian at the University of New Hampshire, Kenneth Mack, who specializes in civil rights history and race relations at Harvard Law School, George Chauncey, a historian at Yale University who has written widely on the gay rights movement — he served as an expert witness in the same-sex marriage cases decided last week — and presidential historian Michael Beschloss.
And, Michael, let me ask you to set the frame for us to start out here, the Supreme Court in one week tackling major issues that resonate through American history.
MICHAEL BESCHLOSS, Presidential Historian: Yes.
You know, oftentimes, you go through a week like this and there may be cases that are interesting now, but not likely to be written about later on.
A historian 50 years now if they are writing a general political history of the United States, I think it would be very hard for them to write about this period without writing about what happened last week, three cases particularly that do have threads that run all the way through American history.
JEFFREY BROWN: Kenneth Mack, did you see a broad theme in these cases, either in the kind of issues they were tackling or in the outcomes?
KENNETH MACK, Harvard Law School: Yes, I agree with Michael Beschloss, that history was invoked in actually all of the cases, history to invalidate a section of the Voting Rights Act, history in the sense that Chief Justice Roberts says that voting discrimination of the kind that this section was trying to attack is history, it is part of the past, and history invoked to strike down the Defense of Marriage Act, when Justice Kennedy clearly saying that the fact that certain states seem to be moving to protect gay marriage is a movement of history that the court is going to acknowledge and in part base its opinion on that.
JEFFREY BROWN: George Chauncey, same question to you. What struck you watching these cases, particularly the one you were most interested in and involved in juxtaposed against some of the others?
GEORGE CHAUNCEY, Yale University: Well, they were, of course, varying mixed decisions in terms of the civil rights movement.
One really can’t overstate the significance of the marriage decisions, both because marriage has historically been such an important symbol of people’s equality and full citizenship. Slaves couldn’t get married. Jews couldn’t marry non-Jews in Nazi Germany.
And Justice Kennedy really spoke to that in his decision, which spent a lot of time talking about DOMA as an infringement on the equality of gay people and giving them second-class marriages. And then again in the Voting Rights Act, talking as if history was behind us, as if the problem of race in America were over.
JEFFREY BROWN: And, Ellen Fitzpatrick, we will bring you into it. Give us a first general overview. What did you see?
ELLEN FITZPATRICK, University of New Hampshire: I think that probably the most relevant point to refer to is Justice Kennedy’s comments that — in the Defense of Marriage case that these really reflect evolving understandings in communities of the meaning of equality.
And all of these cases, I think, in some sense, really touch on that question. What are our fundamental rights? How should they be enforced? And have we reached a point of progress in our society where we no longer need the kind of supervision that the Reconstruction amendment, the 15th Amendment really put into the hands of Congress. Has equality evolved to that point where that is no longer necessary?
In the marriage case, obviously, saying that new understandings in states and in communities do force really this issue, and the importance of acknowledging the dignity of this right.
JEFFREY BROWN: Michael, actually, that word evolving is what I want to pick up on, because we talk a lot here about things that seem settled at one moment and then unsettled, and here we get to watch it.
MICHAEL BESCHLOSS: Well, it’s like history, an argument that never ends. And that’s the way it should be.
And if you go back to the founding period, when the discussions were held about what the court system, the Supreme Court really should do, there were some people, a minority, who said these justices should be cloistered and almost not aware of what is going on within the society.
And I think you have to say that if these justices, for instance, on marriage equality had been sequestered somewhere and not aware of changes within American society over the last 10, 20, 30 years, this decision might not have come about, and it was, to some extent, for that reason, a surprise.
JEFFREY BROWN: Well, Kenneth Mack, pick up on that, because one of the questions in a moment like this is, is the court leading the way, is it following the way? Does it watch what goes on in the society at large?
KENNETH MACK: Well, the consensus among constitutional scholars today is that the court, if it leads, it leads only slightly, that it very much follows what is going on in the larger society, and, in fact, it always has.
And it is not at all surprising to see attitudes towards gay marriage evolving dramatically between the enactment of the Defense of Marriage Act and today, and to see the Supreme Court — the Supreme Court’s approach to this issue also evolving dramatically.
So, the consensus really among scholars who study the Supreme Court is that this kind of thing is essentially what the court does, if it is ahead it is a little ahead, and it is very much embedded in the larger world around it.
JEFFREY BROWN: Well, George Chauncey, in the case of same-sex marriage, there certainly was a lot of commentary in the last, well, weeks, months, years even about how quickly things have seemed to have evolved in the culture. Is that the reality or is that just how it appears at a moment like this?
GEORGE CHAUNCEY: Well, there obviously has been a pretty dramatic shift in public opinion in the last several years, but we need to remember that marriage has been fought for a long time, and only really became an issue for gay activists in the 1980s, when the AIDS crisis and the fact that growing numbers of women were having children together, confronted with the fact that their relationships weren’t recognized by the law.
And they suddenly had to deal with hospitals that wouldn’t recognize them and funeral homes and adoption agencies. And so the marriage movement grew out of that in the ’90s, but it was immediately confronted with very powerful resistance. In 1996 — this has been mentioned — in the height of a presidential campaign, when it first just looked like one state might make marriage legal in Hawaii, Congress overwhelmingly passed the Defense of Marriage Act, and President Clinton signed it.
And then, in 1993, when Massachusetts became the first state to enact marriage rights, it just produced a firestorm of opposition. And, ultimately, 41 states passed constitutional amendments or laws, or both, that limited marriage to a man and a woman. And so this has been an issue that has been struggled over for — in a pretty intense way for 30 years.
And in the last decade, it is really just in the last few years we have begun to see movement towards a growing popular support for marriage equality.
JEFFREY BROWN: And just to stay with you for a moment, what is your theory on the question I asked the others about what happens with the court in a moment like this? Are they following the culture, leading the culture in some sense? What do you think?
GEORGE CHAUNCEY: Well, I think they are doing a bit of both.
You simply can’t underestimate the significance of the court ruling that gay couples, gay married couples should be treated the same as heterosexual married couples, and Kennedy’s language of equality and dignity will really resonate.
And, at the same time — and I think that only would have happened in the context where 12 states had enacted marriage, most of them by legislative action, referenda.
And at the same time, the court didn’t settle the marriage debate for good. It returned the decision to California. So people can get married in California now, but there are still 37 states where people can’t get married; 30 of them have constitutional amendments prohibiting them from doing so.
And so this is something we are going to be fighting for years to come, and the court wasn’t ready to intervene.
JEFFREY BROWN: Ellen Fitzpatrick, go ahead. Weigh in on this question of leading and following and where are we in the evolution. You started with that word yourself.
ELLEN FITZPATRICK: Yes.
I agree with Professor Mack that the Supreme Court is generally, if you look at its long history, quite a conservative institution. Occasionally, it is in advance of society, but rarely is that the case. It usually is reacting to longer-term changes in the country itself.
One thing, though, that I think we should feel less optimistic about in looking at these decisions is the voting rights issue. That is, in this instance, it seems to me that the court has taken quite an activist stance in arguing that Congress has overreached in the various rules that it has put into place in supervising, using the power of the federal government to supervise elections, particularly in the South, where there has been a long history of infringements on the right to vote.
And it is far from — it seems to me, those infringements are far from a dead letter, and yet the court seems to be judging the history of the last century in a very positive way, and arguing, really, that those kinds of safeguards are not necessary, if we look at it in the broadest implications of what they are saying. And that, I think, is a reading of recent history that, certainly, Justice Ginsburg took very strong exception to, evoking the very same history, but reading it in a less optimistic way.
JEFFREY BROWN: But didn’t — Michael, I mean, this is another issue that has reverberations in the past, which would be the activism by the judge — by the court, right?
MICHAEL BESCHLOSS: Absolutely. Absolutely.
JEFFREY BROWN: One way or the other.
MICHAEL BESCHLOSS: Yes.
And this — that grew out of 1965, the Voting Rights Act. That was one of the crown jewels of the Johnson administration under the Earl Warren, very progressive court. We’re living in, at least in the court’s side, a very different period now.
And I think even the most dispassionate person would have to say that this is really a roll of the dice. If we are looking at this 50 years from now, it will either be that this decision meant that voting rights once again began to get restricted throughout the country or that it worked.
JEFFREY BROWN: Kenneth Mack, what do you think of that, on that decision, but also this question of judicial activism on one side or the other and how that too evolves?
KENNETH MACK: Yes.
You notice actually in both of the decisions, the controversial ones, the gay marriage one and the Voting Rights Act, the majority essentially invalidated an act of Congress, and the dissents both invoked judicial activism. It is just that the two sides were switched, with one vote switching sides to make the majority in each case.
So it is a standard rhetoric in the Supreme Court that many, many dissenting groups of justices evoke judicial activism. These are both end-of-term cases. They are the last cases that the Supreme Court decided this term. These kind of cases are usually the cases where the justices are very — decided — where often the decisions are not necessarily based on clear precedent, but on the majority of the justices’ feel for where the law should go.
And in that sense, the Voting Rights Act decision and the gay rights act — gay marriage decisions are both judicial activist decisions. But one thing I would note, that the voting rights decision, the Voting Rights Act was reauthorized in 2006 with overwhelming majorities in both houses of Congress, signed by President George W. Bush.
Very, very different, the gay marriage decision, it seems to me, the president and many, many states were moving in that direction.
So, in the voting rights decision, the court overruled what was, you know, a consensus among two branches of government and a very recent consensus.
JEFFREY BROWN: Well, George Chauncey, you were starting to say before that you think that there is far more to come here, particularly on the marriage question. This history is certainly far from over, right?
GEORGE CHAUNCEY: Oh, yes, absolutely.
And I would just say in reference to the last question, it is clear that Justice Kennedy was really thinking about the issue of being accused of judicial activism. This has been a marriage theme in the marriage debate, that it was a handful of judges granting marriage rights.
In fact, it was just the first three states that acquired gay marriage rights to same-sex couples through court decisions and now California, and the other 10 states have done so through legislation and popular referenda.
But this marriage issue will continue to be waged in state by state for years to come.
And although the press has focused on marriage, for lots of good reasons, given its symbolism and practical effect, there are many other issues that gay rights activists are working on, the endemic bullying of kids who are identified as queer in schools across the country, really complex legal and cultural issues that transgender people face, the upsurge in new HIV infections amongst young gay and bisexual men, and the fact that Congress itself has still not passed a federal law banning discrimination in employment.
So, it is not like the marriage issue has been settled itself or, even if it were, that gay rights would have been a done deal by now.
JEFFREY BROWN: All right.
We are going to leave it there. And thank you, all four, George Chauncey, Ellen Fitzpatrick, Kenneth Mack, and Michael Beschloss. Thank you, all four, very much.