The Supreme Court’s new view of equal justice

WASHINGTON — The Supreme Court promises “equal justice under law” — the words carved into stone on its facade — and last week, the justices set out a new definition of equal justice that they see as suited to this time.

On the last day of their term, they struck down a 1990s-era federal law that denied all legal recognition to the tens of thousands of same-sex couples who have been legally married in the last decade — a ruling that set off gay rights celebrations from the court’s steps to the West Coast.

The scene could not have been more different than the day before, when the court struck down part of a 1960s-era voting-rights law that put the South under special scrutiny. Looking glum and voicing anger, African American lawyers and veterans of the civil rights movement spoke of a betrayal.

The pair of rulings, taken together, may have had few fans, but they reflect a consistent view of equal justice at the court’s center, one held by Justice Anthony M. Kennedy. It is skeptical of old liberal laws that put heavy emphasis on race, and just as skeptical of newer conservative laws that are biased against gays and lesbians. Both fail the test of equal justice, Kennedy said.

The Constitution promises liberty and equality to all, Kennedy says, and that means the government may not divide people into groups based on their race or ethic heritage, and now, their sexual orientation.

Since the 1960s, liberals have insisted the laws must sometimes take account of race and give special protections to black people to make up for a history of racial discrimination. But that time has passed, say Kennedy and the court’s conservatives.

They had soured on the Voting Rights Act during the 1990s. Then they faced a series of cases from the South in which lawmakers — under pressure from Washington officials invoking the act — had drawn odd-shaped districts with the aim of electing more blacks and Latinos. The court’s conservatives called it “racial gerrymandering.”

Many were shocked last week when the nation’s highest court — once a beacon of hope for racial justice — handed down a ruling that voids a key part of the Voting Rights Act. But to the justices in the majority, it means putting less focus on race when drawing election districts.

Kennedy sounded the same theme Monday in the decision that criticized an affirmative action policy at the University of Texas. School officials should avoid judging students based on their race, and instead try a “race-neutral” approach to bring diversity to the campus, he said.

His opinion striking down the federal Defense of Marriage Act, which prohibited recognition of any marriage except one between a man and a woman, was based on the idea that it interfered with the “the equal dignity of same-sex marriages.”

The government has no business treating the deep commitments and loving relationships of gay couples as “second-class” or less worthy of respect, he said. With those words, a new era of equal rights had arrived.

The court’s gay rights ruling is sure to trigger new lawsuits in the 37 states that forbid same-sex marriage. Those states will face this question: What is the justification for denying equal rights to these couples?

But if one era of equal rights was beginning, another appeared to have ended.

Although it is unlikely the House and Senate will write a new law to fix the court’s problems with the Voting Rights Act, in an Arizona case the high court made it clear that Congress has broad power to set regulations for elections. A 7-2 decision written by Justice Antonin Scalia rejected a law that required would-be voters to show proof of citizenship upon registration. It conflicted with the simplified registration form created by the federal Motor Voter Act, he said.

That ruling appears to allow Congress to adopt national standards that could, for example, require states to open polling places for early voting or set limits on the identification cards voters must show at the ballot box. President Obama seemed to endorse that concept Thursday, saying, “We should have mechanisms that make it easier to vote. And that is within Congress’ power.”

Moving beyond the major social issues, this year’s court term saw another round of big wins for corporations. The justices said corporations could use arbitration clauses to shield themselves against class-action lawsuits, even when they may have short-changed their customers and violated the law. They gave makers of generic drugs a shield from being sued, tossing out a jury verdict in favor of a New Hampshire woman who suffered a toxic reaction and bad skin burns from a pain pill.

They also shielded international corporations from being sued for alleged roles in human rights violations overseas. And the justices made it harder for employees to sue their employer if they say they were harassed on the job or were retaliated against for having complained about discrimination. Most of these decisions came on 5-4 votes, when Kennedy joined with the court’s conservatives.

Police and prosecutors also won two important decisions. In a Maryland case, the justices voted 5 to 4 to uphold the routine taking of DNA mouth swabs from people under arrest. Crime experts say this will lead to expanded computerized databases and help investigators solve unsolved cases.

And in a Texas case, they ruled prosecutors could tell the jury that a suspect refused to answer a key question posed by a police officer. This 5-4 ruling limits the reach of the famous “right to remain silent” that stems from the Miranda ruling.

Looking ahead, trouble looms for the Obama administration and liberal advocates on three fronts.

The so-called contraceptive mandate is being challenged by dozen of employers who say they object, on religious grounds, to being forced to pay for birth control as part of a health insurance policy. The Obama administration stands behind the provision as vital for working women, but the court’s conservatives are likely to see the issue as one of religious liberty and excessive regulation by the government. At least one of those cases is likely to reach the court in its next term.

The justices are also likely to decide soon on how far states can go to regulate abortion. Republican-controlled legislatures have passed a series of new laws that restrict the time frame in which women can obtain an abortion, or that require them to undergo ultrasound tests. More than 20 years ago, Kennedy cast a key vote for a compromise ruling that upheld a woman’s right to abortion but left room for state regulation. Antiabortion lawmakers are eager to test that compromise.

And in the fall, Obama’s lawyers will have to defend the president’s use of recess appointments to fill vacancies on the National Labor Relations Board. Since World War II, presidents have increasingly used temporary recess appointments to fill seats when the Senate refuses to act.

But a U.S. appeals court in Washington declared Obama’s use of these appointments unconstitutional, and the Democratic president is asking the conservative-leaning high court to restore his authority.

david.savage@latimes.com