Young: DOMA and Voting Rights decisions were right, and consistent
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'No to blacks, yes to gays." That's how some left-wing commentators have summed up last week's landmark Supreme Court rulings: one that struck down a 1996 ban on federal spousal benefits for same-sex couples married under state laws, and another that ended pre-emptive federal civil rights scrutiny of voting practices in some parts of the United States.
Though some liberals see an inconsistency, in fact, the high court's decisions invalidating portions of the Defense of Marriage Act and the Voting Rights Act reflect the same principles: deference to state rather than federal powers; nondiscrimination; and a realistic, forward-looking assessment of social and cultural change.
The now-abolished DOMA provision was a fairly clear-cut federal abridgment of state sovereignty. Even though the regulation of marriage -- deciding at what age people can enter such unions, or when they are too closely related to be legally wed -- had always been a state matter, the federal government in this one instance refused to honor this prerogative. If a state chose to let same-sex couples marry, it could only offer them a second-rate version of marriage without many of its key benefits. Singling out same-sex marriages also violated equal treatment.
The now-abolished provision of the Voting Rights Act required nine states and several counties to obtain advance federal permission for any change to voting laws and procedures. As the majority opinion by Chief Justice John Roberts notes, this was not only "a drastic departure from basic principles of federalism" but "an equally dramatic departure from the principle that all States enjoy equal sovereignty."
The law was passed in 1965, when many Southern states systematically suppressed the African-American vote. The pre-clearance clause was originally meant to last five years. Congress has repeatedly renewed it, using an increasingly broad and complex formula to determine which jurisdictions would remain covered. Ironically, one of this formula's initial key elements -- either voter registration or turnout below 50 percent -- is long obsolete. In Alabama, where in 1965 nearly 70 percent of white residents and fewer than 1 in 5 blacks were registered to vote, the 2004 figures were 73.8 percent and 72.9 percent.
In 2012, African-American voter turnout in most of these states and counties exceeded white turnout. The covered jurisdictions also have above-average percentages of blacks elected as officeholders, and better records for voting discrimination complaints than some uncovered ones. Yet until the Supreme Court ruling, they had to seek federal permission to so much as move a polling place a block away. In the past decade, the Justice Department has approved nearly 99.9 percent of the requested changes, suggesting that pre-clearance is not only a humiliating imposition on local authorities but a waste of both federal and local resources.
Some have invoked Paula Deen, the Georgia celebrity chef recently disgraced by admissions of using racial slurs, as proof that the South hasn't changed all that much. Yet Deen's story shows not just a history of bigotry but a history of change. Her confirmed use of offensive language dates back three decades, with no allegations of more recent incidents. Deen, who has been lauded by former President Jimmy Carter for sponsoring charitable programs that mainly benefit low-income African-Americans, voted and actively campaigned for President Barack Obama.
Just as race relations have changed dramatically since the mid-1960s, attitudes toward homosexuality have shifted profoundly since the mid-1990s. When DOMA was passed, nearly 70 percent of Americans opposed same-sex marriage; that's down to about 40 percent this year. On both marriage and voting rights, the Supreme Court has rightly ruled that the law should not remain a prisoner of the past.
Cathy Young is a regular contributor to Reason magazine and the website RealClearPolitics.