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Justices ready to change America

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer   |   May 5, 2013 at 3:30 AM   |   Comments

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WASHINGTON, May 5 (UPI) -- It's spring, and the U.S. Supreme Court is lifting a mighty hammer. When the justices bring that big hammer down, they may change forever the way the races interact in the United States and forever redefine the millennia-old definition of marriage, bringing joy to some discrete groups and dismay to others

The Supreme Court spring -- the time between the end of the term's arguments in late April to the rising of the court for the summer recess in late June -- traditionally sees many of the high-court's heavyweight decisions. The justices take all the time they can to form majorities and write opinions in the most difficult cases, and often hand them down at the 11th hour.

In what's beginning to sound like a constant refrain, Justice Anthony Kennedy may hold the deciding vote in four landmark cases still to be decided before the end of the term, with the rest of the court divided between between four conservatives and four liberals. If that's true, affirmative action and a key provision of the Voting Rights Act may be history within the next two months, but gays and lesbians may win significant victories in their fight for equality in marriage.

Kennedy's record is pretty clear.

In 1996's Romer vs. Evans, Kennedy wrote the 6-3 majority opinion striking down a Colorado amendment that banned legislative, executive or judicial action at any level of state or local government designed to protect people based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

Amendment 2 was enacted by state voters in response to laws protecting gays and lesbians in some communities.

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy wrote. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."

In 2003's Lawrence vs. Texas, Kennedy again wrote the 6-3 majority opinion striking down the Lone Star State's anti-sodomy law.

"Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct," he wrote.

Kennedy may tend to lean toward interpreting the constitutional equal protection clause that helps gays and lesbians in the two pending same-sex cases.

But his attitude in the affirmative action case and the Voting Rights Act case may be quite different.

In a 2003 5-4 majority ruling upholding the University of Michigan Law School's affirmative action admission policies, Kennedy was among the dissenters but also dissented separately in his own opinion.

"Preferment by race, when resorted to by the state, can be the most divisive of all policies," Kennedy wrote in 2003 in Grutter vs. Bollinger, "containing within it the potential to destroy confidence in the Constitution and in the idea of equality."

This term's affirmative action case was heard Oct. 10. It involves the affirmative action admissions policy at the University of Texas at Austin.

Kennedy appeared to lead the skeptics from the bench as the justices heard argument on the policy.

In the underlying case, more than three-fourths of freshmen enroll at the University of Texas through a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.

Two white students denied UT admission under the policy challenged it in federal court.

A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.

The majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent in Grutter vs. Bollinger.

But during argument before the Supreme Court, the admissions policy appeared to be in trouble with at least four conservative justices. Kennedy showed some doubt, and appeared in the end not to be convinced of the policy's constitutionality.

The liberal bloc, expected to support the policy, was reduced from four to three because of the withdrawal of Justice Elena Kagan, who was U.S. solicitor general in the early phases of the case.

The Voting Rights Act case was heard later in the term on Feb. 27.

At issue in the case, Shelby County, Ala., vs. Holder, is whether Congress exceeded its constitutional authority by re-enacting Section 5 of the Voting Rights Act in 2006 -- a "prophylactic" measure that restricts what may be constitutional activity on the chance that it may be unconstitutional activity, and only in venues with a history of suppressing the voting rights of minorities.

Section 5 of the act is a core provision that says all or parts of 16 states, mainly in the South, have to get permission -- or "preclearance" -- from the U.S. Justice Department or a three-judge federal panel in Washington to make any changes in how people vote in their jurisdictions, no matter how innocuous.

If Section 5 is struck down, its supporters say, it may drive the South back to the days of Jim Crow, when blacks took their lives in their hands to vote. Those days are gone, opponents say, and the regions covered by Section 5 show higher minority voting than the rest of the country.

During argument before the Supreme Court, a narrow majority of justices appeared ready to strike Section 5 down, most media analysts said. From the bench, Justice Antonin Scalia called the 2006 congressional reauthorization a "perpetuation of racial entitlement,"

The two same-sex marriage cases were heard on consecutive days in March.

On March 26, the justices heard argument in Hollingsworth vs. Perry, the challenge to California's Proposition 8. No California officials defended the measure in court.

California voters approved Proposition 8, the California Marriage Protection Act, in a 2008 vote with slightly more than 52 percent for and nearly 48 percent against. Prop 8 says in part: "Only marriage between a man and a woman is valid or recognized in California."

The lower courts have struck it down as unconstitutional.

During argument before the Supreme Court, the justices appeared to be closely divided on Prop 8's constitutionality. But Kennedy expressed sympathy for the children of same-sex couples.

"They want their parents to have full recognition and legal status. The voice of those children is considerable in this case, don't you think?" Kennedy said from the bench.

The second same-sex marriage case was argued the next day, March 27.

At stake in United States vs. Windsor is the federal Defense of Marriage Act, enacted in 1996 and signed into law by President Bill Clinton, who has since changed his mind on the issue.

Only Section 3 of the act is under challenge. Section 3 says: "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

DOMA has taken a beating in the lower courts and it's up to the Supreme Court whether to save it or not.

The Obama administration is among the challengers, and told the high court in a brief that DOMA excludes same-sex marriages "from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health, and welfare, tax and other laws."

In addition to the administration, Facebook, Apple and Microsoft and more than 270 other companies urged the justices to outlaw the act, saying, "DOMA forces [the businesses] to administer dual systems of benefits and payroll, and imposes on them the cost of the workarounds necessary to protect married colleagues" in the handful of states that allow same-sex marriage.

For the moment, 10 states -- Rhode Island joined the club last week -- and the District of Columbia permit same-sex couples to marry.

The U.S. House Republican leadership is defending the act through the Bipartisan Legal Advisory Group.

When the case was heard by the Supreme Court, most analysts said the justices, including Kennedy, appeared ready to strike down the act -- though comments from the bench are not always indicative of how the justices actually will vote.

In the underlying case, Edith Windsor, 83, is an attractive plaintiff though her personal situation is not supposed to influence the justices.

In 2007 in Canada, Windsor legally married Thea Spyer, her same-sex partner of more than 40 years. Windsor worked for years at IBM as a senior computer systems programmer before she quit to take care of Spyer, who held a doctorate in clinical psychology.

When Spyer died in 2009 of multiple sclerosis, she left her estate to Windsor.

As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes." The Internal Revenue Service denied the claim because Windsor is not a "spouse" under DOMA's Section 3 and thus not a "surviving spouse" within the meaning of the federal estate tax statute.

Windsor then filed suit in Manhattan challenging Section 3's constitutionality, saying it violated the equal protection guarantee of the Fifth Amendment.

In remarks posted on the left-leaning ThinkProgress.org website before the Supreme Court argument, Windsor said: "I don't feel it as the start of a legal process. I feel it though, as this great joyous thing going on with the whole gay community. ... The suit is about marriage, my marriage to her, and her marriage to me. It's like magic. It's a magic word, and the whole world understands what it means, so I think it's very important that our marriages exist and can be recognized."

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