GWEN IFILL: A spectacular news week courtesy of the U.S. Supreme Court. We examine how their decisions could change your life, tonight, on “Washington Week.”
GROUP: (From tape, singing.) God bless America.
PRESIDENT BARACK OBAMA: (From tape.) I think the Supreme Court ruling yesterday was not simply a victory for the LGBT community. I think it was a victory for American democracy.
MS. IFILL: Gay rights triumphs at the Supreme Court.
KRIS PERRY [Proposition Eight Supporter]: (From tape.) Today, we can go back to California and say to our own children, all four of our boys, your family is just as good as everybody else’s family.
MS. IFILL: But will the victory hold?
REPRESENTATIVE TIM HUELSKAMP (R-KS): (From tape.) With this decision the courts have allowed the desires of adults to trump the needs of children. Every child deserves a mommy and a daddy.
MS. IFILL: And mixed rulings on two race-based cases as the Voting Rights Act is scaled back.
ERIC HOLDER [Attorney General]: (From tape.) I am deeply disappointed, deeply disappointed with the court’s decision in this matter.
EDWARD BLUM [Director, Project on Fair Representation] : (From tape.) Our nation’s laws are one size fits all. And each state is entitled to the equality dignity and respect of our congressional statutes.
MS. IFILL: And the future of affirmative action is left unresolved.
ABIGAIL FISHER: (From tape.) We’ve got more work to do, but I’m looking forward to the next steps in this process.
MS. IFILL: We examine the legal, policy, and political implications of a historic week at the nation’s highest court, with Dan Balz of the Washington Post; Joan Biskupic of Reuters; Amy Walter of the Cook Political Report; and Pete Williams of NBC News.
ANNOUNCER: Award winning reporting and analysis, covering history as it happens, live from our nation’s capital, this is “Washington Week with Gwen Ifill.”
ANNOUNCER: Once again, live from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. Even if we were given to hype around this table, this week would defy any temptation to overstate. So we’ve assembled the smartest folks we could think of to break it all down for you: the legal reasoning, the political consequences, and the policy effect of all the big cases decided by the Supreme Court this week and this term.
Edith Windsor, the plaintiff in the case that overturned the Federal Defense of Marriage Act put her victory this way.
EDITH WINDSOR [DOMA Plaintiff]: (From tape.) I lived with and loved Thea Spire for more than four decades in love and joy, in sickness and in health, until death did us part. When Thea died in 2009 from a heart condition, two years after we were finally married, I was heartbroken. On a deeply personal level, I felt distressed and anguished that in the eyes of my government, the woman I had loved and cared for and shared my life with was not my legal spouse but was considered to be a stranger with no relationship to me.
MS. IFILL: Justice Anthony Kennedy, writing for the five to four majority, found that law enacted in 1996, quote: “Undermines both the public and private significance of state-sanctioned same-sex marriages, for it tells those couples and all the world that their otherwise valid marriages are unworthy of federal recognition.”
Justice Antonin Scalia, writing for the minority, saw it differently. He wrote: “On the majority’s telling, this story is black and white. Hate your neighbor or come along with us. The truth is more complicated.”
So what were the complications, starting with you, Pete?
PETE WILLIAMS: Well, Justice Scalia said – would say the complication is that not everybody who voted for the Defense of Marriage Act was motivated by animosity toward gay people, that it’s more complicated than that.
But two other points about this. First of all, the decision strikes down the part of the law that prevents the federal government from recognizing the validity of same-sex marriages in the states where they are permitted. But it does also create instant complications. What happens if a couple gets married in one of those states and then moves to a state where marriage is not allowed? Do they still get federal benefits? The government is trying to work that out.
And, secondly, it’s complicated because there are parts of the ruling that can be used by both sides in this debate as it goes forward. For example, for gay rights groups, it’s the language. It says same-sex marriages have dignity, a word that the author of the opinion, Anthony Kennedy, uses 10 times. He says it’s a legitimate personal bond that deserves deep recognition. But the opponents will say, no, no, the key to the ruling is that the states get to decide what marriage is. So those are some of the complexities.
MS. IFILL: But, Joan, the one thing that this did not do was give any kind of constitutional protection to gay marriage. It stopped well short of that.
JOAN BISKUPIC: Definitely. In fact, that wasn’t even the issue in that case. It was the second case, involving California’s Proposition Eight, where the justices could, if they had chosen to, gone all the way and actually decided whether there should be a constitutional right to same-sex marriage nationwide, not just in the states that already have it.
And what the court did in that case was essentially say, we’re not going to decide. The challengers in the case, those who had defended Proposition Eight, which everyone remembers was the 2008 ballot initiative there that defined marriage as only between a man and a woman and stopped all local efforts to actually have same-sex marriage, the question was: was that constitutional or not?
Now, lower courts had said no. The proponents of it had come back up to the Supreme Court, and said, you assess this. But the Supreme Court said, by another five-to-four vote, different from what Pete was talking about, no, we’re not going to decide.
And underneath all that – first of all, one thing it did, it did something really big. It just allowed same-sex marriage to go forward in California, which in and of itself is really important.
MS. IFILL: As we speak here tonight, 8:30 (p.m.), 8:40 (p.m.) of the East Coast, actually, they’re starting marriages.
MS. BISKUPIC: Right. So that is no small thing that California can now do it. But David Boies and Ted Olson, the super lawyers who had brought this case to the Supreme Court, thought that perhaps they could win this nationwide right to same-sex marriage. And the Supreme Court said, we’re not going there, and, frankly, sent some signals that said, not for a while.
MS. IFILL: Well, let’s talk about the broader impact of this, because we have – we can have a map up here. Let’s look at all the states where same-sex marriage is already legal. California and Washington in the West; Minnesota and Iowa in the Midwest; in the Mid-Atlantic, D.C., Delaware and Maryland; and all of New England – Connecticut, Rhode Island, Massachusetts, Maine, New Hampshire, Vermont.
And I wonder, Amy, if you look at these, whether this means there is a groundswell that’s building in all of these states already.
AMY WALTER: I don’t know that you’re going to see a groundswell. I mean, it seems pretty clear when you look at where it’s legal and where it’s not, it divides also pretty well how people voted in the presidential election, right, in the blues and the reds.
MS. IFILL: And whether it was on a ballot initiative or legislative.
MS. WALTER: – initiative or whether it was by the legislative.
MR. WILLIAMS: Or by a court decision.
MS. WALTER: Or by a court, right, in Iowa’s case. And we still see – while the trend is heading towards acceptance of gay marriage, it’s still pretty evenly divided. I mean, it’s something like 50/43 percent or 52/45 percent favor.
The problem in terms of, you know, where it’s going for opponents of this issue is that it really is older people who are the most opposed to this. As those folks sort of fade away and younger people – that was a nice way of saying that, wasn’t it?
MS. BISKUPIC: A polite way to say it.
MS. WALTER: And younger people start to move up in age, this is just not an issue at all. But I think that, to me, is the biggest question, which is what does happen in a state where it’s not legal? Do people in that state then have to go to a court to get their marriage, you know –
MS. IFILL: Validated.
MS. WALTER: Validated.
MS. IFILL: Well, here’s the interesting thing, Dan, which I also find, which is that the change that we’re talking about, from old to young, from just generation to – some of the politicians we cover, just a few years ago – in fact, Bill Clinton signed DOMA in the dead of night. Hillary Clinton and Barack Obama were against gay marriage in 2008, not that long ago. They were all cheering this week. What changed?
DAN BALZ: Public opinion changed. And, as a result, the politicians followed. And to some extent the court followed as well.
I think there are two political sides to this. I mean, one is the continuing effort now state by state that these decisions will set off, where proponents will try to change the laws, or, in some cases, the state constitutions. That’s a long process. I mean, the Supreme Court could have short-circuited that and chose not to. And we don’t know what a future court might do. But that’s one fight.
There’s also the other side of the political fight, and that is, how does this fit into Republicans versus Democrats in political campaigns and who stands on which side? And I think even before these decisions, what you saw was that, in essence, there had already been a tipping point in that. Not that long ago, Republicans saw this issue as one that was helpful to them to rally their base. And certainly, in the 2012 election, we saw President Obama and the Democrats, and ever since then, make it clear that they now think that the momentum of this issue is much more on their side politically.
MS. WILLIAMS: And it’s just very interesting to look at the statement by John Boehner because the defense of the Defense of Marriage Act was picked up by House Republicans after the Obama administration said, we won’t defend it. What Boehner said is not the sky is falling. He just said, well, you know, we did our part to make sure there are checks and balances and an opposite branch of government gets to weigh in. I personally have my views. But it was not, you know, the end of the world.
MR. BALZ: It was not a call to the barricades.
MS. BISKUPIC: Right. And what’s interesting though is that there’s a majority sentiment among the public and there’s a near majority coming now, both crossing over Republican and Democrat, but not majority of the states. And that’s why it will ultimately come back to the Supreme Court, because there will be some states that will just plain hold out.
MS. IFILL: In the meantime, there are practical impacts. We saw that the Pentagon came out, and said, we’re going to start giving benefits to gay partners. And we also saw that in immigration – I’m sorry. The words are going to come out – in immigration, there are supposed to be 36,000 couples who would be affected by this. So this diffused at least one key part of the argument in the immigration bill.
MR. WILLIAMS: Well, those are the two easy ones, because that’s where the law is quite clear. It’s not clear on, for example, you get married in a marriage state; you move to a non-marriage state; what benefits go with you. They’re trying to figure that out now.
Only today, the Office of Personnel Management put out the first directive that applies to federal employees, and saying, now same-sex partners, we’re going to recognize you for health and life insurance. Those are the easy ones. It’s taxes; it’s veterans’ benefits; it’s Social Security – some of these things may actually require an act of Congress to allow the benefits to follow people to a non-marriage state.
MS. WALTER: That’s so funny, isn’t it, talking about Congress doing that?
MR. BALZ: How quickly will any of this come back to the court?
MR. WILLIAMS: Well, I think what will happen is a couple that gets married, say, in Massachusetts, and moves to Alabama, and seeks to have its marriage recognized by the state is going to sue there. So that’s how the next round of court battles will start. But, as Joan noted, the Supreme Court was only too happy to hustle the Prop Eight case out the door. They don’t want this now. And I think the people who are trying to get these rights –
MS. IFILL: Because they said that the people – but for a technical reason too.
MR. WILLIAMS: Yeah.
MS. BISKUPIC: No, but there was – yes. For technical reasons on that, but it was a very shrewd set of votes. The 5-4 group that got rid of the Defense of Marriage Act provision splintered in a way that said – suggested – and I really think this is the signal, Pete – is that even the liberals don’t want to have to handle this now. They don’t think they have the votes.
MR. WILLIAMS: They’re just not ready.
MS. IFILL: There are different coalitions on this.
MS. BISKUPIC: Exactly. So I think that’s the message. Meanwhile, the proponents, Ted Olson and David Boies and their team are looking around for another state to bring a challenge, but that might take a couple of years and maybe the court will be readier.
MS. IFILL: Another big decision this week involving the Voting Rights Act and the Section Five of the Voting Rights Act, which requires preclearance and certain bad actors or people – states and jurisdictions judged to be bad actors in voting rights had to go to the federal government and get their – anything they want to do, change the district lines, change the polling place, cleared by the federal government. That was being challenged. And that – and the challenge won.
Justice Roberts was writing for the 5-4 majority. He wrote: “Our country has changed. And while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy the problem speaks to current conditions.”
Justice Ginsburg, who actually was on the other side of this and wrote a very, I thought, direct counter to this, wrote for the minority: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
MR. WILLIAMS: Well, what this is actually – as a technical matter, what they threw out is not the preclearance requirement. It’s the map; it’s the places where preclearance applies.
So, number one, this should come as a surprise to nobody because the court said four years ago, attention, Congress: We think that the map and the data don’t match. Things are getting better in the South. Do your homework or we’re going to throw this out. Congress did nothing. The court threw it out, like it said it would.
So now the administration has to try to figure out how to fix the map problem. And they’re already talking about that. I talked to an administration official today who said they’re trying to look at maybe something that they could impose nationwide that would look at certain practices or certain attempts to change voting patterns that would then maybe trigger something like you have in the Equal Employment Opportunities Commission, where you have to get permission first to file a lawsuit.
They know the problem. If you go back to Congress and say, let’s draw a new map, then there’s nothing but horse trading: I’ll keep you county out if you’ll keep mine out.
MS. BISKUPIC: It won’t happen. It’s won’t happen.
MS. WALTER: Well, and you know, the reality, though, is that neither Republicans nor Democrats want to get rid of the way that these lines are currently drawn and that have gone through the preclearance. Packing Democrats into a majority-minority district helps that Democrat win the election, right? It makes it a very safe Democratic district. The incumbents who have those seats want to keep those seats. Republicans love those seats. You know why? Because it means there are no Democrats anywhere else in the state. They’re all in one district. So it means that you have one Democratic district, and then all around it a lot of Republican districts. They’re not going to want to change those lines for political reasons.
MS. BISKUPIC: OK. In 2006, they actually looked at it and they thought, can we write a new formula that doesn’t just target the old South mostly, because the nine states that are covered are mostly in the old South and then a couple other jurisdictions.
MS. IFILL: As a matter of fact – in fact, Justice Roberts suggested that they come up with a plan, didn’t he? Didn’t he hint pretty strongly that they would have to fix this?
MS. BISKUPIC: Oh, definitely he did, but I can’t tell you enough about how hard it would be to do that, because here is a regulation that is supposed to be a deterrent. It’s not for people who intentionally discriminate. It’s something out ahead of time. That’s why it’s hard to say the whole nation must be covered. So I think it’s going to be really tough for Congress to act on this.
MS. IFILL: Even though President Obama praised what happened on the gay rights case, he was very critical on what happened on the voting rights case. Let’s take a listen to what he had to say, and also the attorney general of the state of Alabama.
PRESIDENT OBAMA: (From tape.) It was the cornerstone and the culmination of years of struggle, blood, sweat, tears, in some cases deaths. I might not be here as president had it not been for those who courageously helped to pass the Voting Rights Act.
LUTHER STRANGE [Alabama Attorney General]: (From tape.) I want to reassure all the voters of our state, black and white and all minority voters, that nothing has changed in terms of the importance of the right to vote and the fact that we are going to ensure that everyone has the right to vote and they’re not discriminated against in any way.
MS. IFILL: Dan, that sounds like the problem is all fixed, right?
MR. BALZ: Well, I mean, in one way, we are talking about a different South than we talked about under the rules of the original Voting Rights Act. At that time, voter registration among blacks was a fraction of what it was among whites. Today, it’s equal, in some cases higher -- a higher percentage.
On the other hand, the Voting Rights Act gets credit, rightly so, for having brought about those changes. And the political debate at this point is do you still need that in order to keep that moving forward? I mean, the court said there is still discrimination. And the question is at this point, what do you do? What kind of enforcement mechanism can you have?
The other thing that’s happened is that the kinds of discrimination that go on are not the – they’re not poll taxes. Those are outlawed. They’re not the kinds of things that, again, triggered this in 1965.
MS. IFILL: They’re not overt. Yeah.
MR. BALZ: But we saw in the last campaign a big debate, which was a polarizing debate, about voter ID laws and other changes to –
MS. IFILL: And in places like Ohio and Pennsylvania, where there hasn’t been preclearance, right?
MR. BALZ: That’s exactly right. So the question is: how do you deal with those, and then the idea of, can you come up with some kind of nationwide approach to it? I don’t know.
MR. WILLIAMS: And as a starting point for the Justice Department and the administration, some kind of formula for Section Four that doesn’t include entire states to start with.
MS. IFILL: So a state like – but this was just Shelby County challenging this.
MS. BISKUPIC: It was, but all of Alabama is covered, which was so ironic because it was the bridge in Selma that was the – and the violence there in 1965 that got LBJ, you know, to – got Congress to sign the Voting Rights Act and then –
MS. IFILL: So this lands back in Congress, again. Here we are back to this question that Congress could fix this. And, in fact, if there’s one thing that seems to run through these decisions is that this should be the state’s problem, right?
MR. WILLIAMS: Well, the Justice Department very much wants to try to bring as much of the voting right – the key part of the Voting Rights Act back. We should note, of course, that parts of the Voting Rights Act survived that allow anybody to sue anybody. But this was the strong part that could prevent things going into effect that were considered discriminatory.
There’s a genuine effort – a Republican, James Sensenbrenner, who was very supportive of the Voting Rights Act, says he’s willing to try again. I mean, there’s some embers that they’re trying to blow on to see if they can get something going.
MS. IFILL: Another big decision this week, affirmative action. Boy, they were just – they just kept them coming. In this case, Justice Kennedy was once again writing for a seven-to-one majority. There wasn’t a lot of dispute. But this is what he had to say about that.
He said: “Strict scrutiny” – and we’ll get back to what that means – “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.” What is he talking about?
MS. BISKUPIC: Well, the bottom line is that, for now, universities can continue to take into consideration the race of an applicant. We were wondering whether the court might use this case to say, no affirmative action nationwide. But the court stopped well short of that, but said in the Texas case, from the University of Texas, where the young woman who you just saw on the screen, Abigail Fisher, had been excluded, that they have to go back and have that program reassessed.
Important, Gwen, is he didn’t backtrack from the 1978 Bakke decision or the 2003 Grutter decision –
MS. IFILL: For now.
MS. BISKUPIC: For now, exactly. But there was almost like the same sort of warning shot that Pete was referring to in 2009 on voting rights, here in this case. And what it essentially said was that the lower court had used the proper standard, but used it too generously toward the university.
MR. WILLIAMS: What the court is basically saying is, it’s OK to have diversity, but universities have to almost prove that they’ve tried everything except a race-conscious program to get that diversity. And the court shouldn’t take their word for it. They should give them an extra hard test.
MS. IFILL: Well, like the Texas plan. There were a lot of things that they had in that lump, but as long as race was part of it, they could consider regional, geographic diversity. They could consider all kinds of things. But race always is the thing that makes people go, no. That’s a bridge too far.
MR. BALZ: And one of the things about this issue is, first of all, over the last 20 years, support for affirmative action has declined. There was an NBC-Wall Street Journal poll in May or early June that basically has it 45-45 of we think it needs to continue, we think it should end. On that question, there is a huge division between whites and African-Americans and Latinos.
MS. WALTER: And there’s a huge division on – we were looking at the same poll – there’s a huge division on Democrat and Republican. And this is really the challenge when we’re thinking about how these issues play out politically is we know, coming from the 2012 campaign, the Republican Party says, we’ve got a demographic problem on our hands, right? We have to get more young voters to vote for us. We have to get minorities to vote for us.
On gay marriage, they know they’re on the wrong side in terms of where that demographic trend is going. And yet, their base is still very much against gay marriage. I mean, the support of it – I think it was 29 percent among Republicans, whereas among Democrats and independents, it’s over 50 percent. The same thing on this issue.
MR. BALZ: The other tricky thing about this issue, if you introduce the idea of any kind of a preference, support goes way down for affirmative action. I mean, we did a poll. It was 76 against, 22 in favor.
MS. BISKUPIC: With the question being asked, preference rather than diversity.
MR. BALZ: Tailored to that – tailored to this decision.
MS. BISKUPIC: Right. Yeah. Well, I’m going to step back and think big picture here. End of the court term; we saw some definitive theme, federalism being one of them, power of the states that kept popping up in a lot of difference cases, corporate power. And I’m wondering whether you see John Roberts’ handprints on everything, the way everybody else does, or whether there’s something else going on?
MS. BISKUPIC: His handprints are a little more subtle. Now, he did, obviously, write the big Shelby County case, and he did write the case that sent Prop Eight back.
MS. IFILL: The Voting Rights case for those who don’t keep track of county.
MS. BISKUPIC: Yeah. Shelby County, Alabama. And his fingerprints were on many things. But the man who’s actually signing most of this stuff right now is Anthony Kennedy. So they’re working together in a way. And both of them, separated by about 20 years in age, feel like they’ve got real legacies to ensure here. And I think that what we’re seeing is sort of them working in tandem. And last year, it was John Roberts who cast the deciding vote in health care. This year -- this year it was Anthony Kennedy all over the place with his idea of equality.
MS. IFILL: Pete?
MR. WILLIAMS: I was just going to say, yes. It’s the Roberts court, but, right now, Anthony Kennedy is the president and chief executive officer. You have his views. He’s very opposed to any kind of governmental preference for race-conscious decisions. He also though feels very strongly about – he has a libertarian view in the dignity and sanctity of the individual. So you have him writing the main – all the court’s important gay rights cases, but also casting a very dim view of affirmative action and the Voting Rights Act.
MS. IFILL: Is whatever happens with the court too distant from American voters and from American people or does this have an outcome on elections that we’re keeping an eye on?
MR. BALZ: I think it’s somewhat distant for most of these. Obviously, the same-sex marriage one drew most of the attention. But, again, as I said earlier, in a political sense, we can see how that’s moving and how its impact is. It will come up in 2016 again, however, in the presidential campaign.
MS. IFILL: I remember it being a big issue.
MR. BALZ: Yeah.
MS. WALTER: In the presidential campaign. Yeah. The irony is for as hot button and much of a wedge issue that gay marriage was in much of the ’90s and the early 2000s, no Republican strategist wants their candidate to talk about gay marriage 2014.
MS. IFILL: They’re going to have to find something else to fight about. I think they will. Thank you. It’s all something else. Thank you all. This was fascinating.
You may have noticed we didn’t get to a lot of other news this week, but we will online, in the “Washington Week Webcast Extra.” You can join us live at 8:30 Eastern Time, at pbs.org/washingtonweek.
And while you’re there, plan your vacation reading by checking out the summer book recommendations from our “Washington Week” panelists. Smart one-stop shopping. Keep track of daily developments with me over at the PBS “NewsHour.”
And we’ll be back with a special program next week, a mid-year report card for the president and the Congress. That’s next week on “Washington Week.” Good night.