Tag Archives: Supreme Court

New #SCOTUS ruling on affirmative action passes the buck and says let voters decide

The best possible spin on the Supreme Court’s decision on affirmative action in Michigan is that it doesn’t end affirmative action.

The decision did not say affirmative action was unconstitutional.

It merely narrowly decided that Prop.2, the Michigan initiative that voters passed to end race-based affirmative action in that state could be applied and that the equal protection clause was not violated.

It even sounds good. Let the voters decide, right?

OK, but why do we leave it to the voters to decide on that issue and that issue alone, and not on every single item that the University officials oversee?

Why take that power away from the professional educators?

As I went through the 6-2 opinion, I wasn’t that surprised that someone liberal like Breyer would vote with Kennedy, Roberts, Alito, Scalia and Thomas.

Breyer stated he was for some forms of affirmative action, but didn’t see why the voters shouldn’t be allowed to weigh in.

But then there was Sotomayor’s lengthy dissent, which took the hardline, that this ruling indeed was setting up the situation where down the line we might  see the tyranny of the majority, and see the violation of minority rights under the equal protection clause.

That’s what was at stake here.

The majority of justices seemed happy enough to see the voters figure out where they stand on affirmative action.

After reading Sotomayor’s minority dissent, I’m not sure if that’s such a great thing.

We know how fair elections are now, with money driving everything.

That means we’ll probably see  a lot more SCA-5 style battles–until the court makes yet another ruling on the constitutionality of race based methods in university admissions.

UPDATE: 4/23/2014

It’s not surprising that the courts want to get out of the race business. Just like the legislatures have gotten out of legislating by relinquishing their role to the initiative process for the tough issues.

So if the elections are so important, why do electoral rights seem to be under attack? From the Voting Rights Act provisions, to campaign finance, has there been a more activist Supreme Court to reverse  the rights of minorities?

And now elections are the preferred way to settle racial fights? Sounds like SCOTUS just gave itself cover for its horrendous decisions, putting it all on the electorate.




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DOMA done, challenge to Prop. 8 denied, let the June weddings begin again in California

I could sense something good was going to happen as early as this spring, but you never know.


And today, it happened.

The Supreme Court by it’s 5-4 ruling has declared Defense of Marriage Act unconstitutional.

This really is a states rights issue. How could those legally married in states that allow gay marriages be denied federal benefits given to straight wedded couples? That’s discrimination, and shouldn’t be allowed. The court concurred.

So if you’re in one of the states where same-sex marriage is legal, this is an especially great day.

The DOMA refutation was expected. It wasn’t clear what the court would do with Prop. 8, the same-sex marriage ban voted in by the state.  When it was challenged and California officials wouldn’t defend the ban, the proposition’s leadership went to court to defend its constitutionality. But the high court in the way it acted, chose to sidestep ruling directly on same-sex marriage. It simply ruled that the Prop.8 folks didn’t have standing, or the right to argue the matter. So the case is sent back to the 9th circuit with orders to dismiss the case, and based on reports, same-sex marriages can resume again in California.

The Pride Parade in San Francisco on Sunday is going to be extraordinarily celebratory.

After the disappointing decisions on affirmative action and the Voting Rights Act this week, the Supreme Court gives us something to cheer about.

No warm champagne toasts on these decisions.

Some thoughts after SCOTUS – Prop.8 hearing

Prop. 8, that slimy, disingenuous constitution-block to same-sex marriage in the nation’s most Asian American state, is crawling back from the U.S. Supreme Court, not quite totally defeated but certainly with its tail between its legs.

It now waits for a decision by the High Court’s June recess. But from all appearances Prop. 8 will likely be sent back to California with the lower court ruling that declared it unconstitutional intact.

If my crystal ball is correct, same-sex marriages should continue again in the Golden State, but just in California. It doesn’t appear there’s five votes on the court to go whole hog for same-sex marriage nationwide quite yet.

But the trend is here. And if you’re for Prop.8 and anti-same-sex marriage, then you are akin to the proverbial Dutch boy with his finger you know where.

The flood of same-sex marriage support is about to overwhelm you.

Which is why, if you have a problem with same-sex marriage (maybe it’s a Catholic thing), I suggest you get thee to a gay marriage ceremony once they resume.

Stand in the back, by the organ — the big one that makes all the joyous noise. Or, if you’re crashing the party and feel uncomfortable, hide behind a rubber tree. Just go. You’ll be amazed.

In 2003, I attended my family’s big, fat gay wedding last weekend — my cousin Pauline’s, to be exact.

Forget about the legal contortions and gobbledygook you’ll hear from the lawyers on both sides of the issue. When you go to a gay wedding, one thing becomes apparent: The ceremony is so fundamentally American — as American as free speech — that it’s hard to imagine how anyone can fail to recognize a marriage based on such an unabashed public declaration of love.

The power of it all is undeniable. When the politics get personal, the matter is as clear as wedding-gift Lalique.

Before going further, I must say that while the function was big and fat, with nearly 400 people, I questioned whether it was really all that gay.

After all, this was a wedding where two brides made a pair — a lesbian pair. And that’s fine by me. As a straight male, I have definite lesbian tendencies. That is, I really like women, too.

At the wedding, author and former Ms. magazine Executive Editor Helen Zia helped make the distinction for me and schooled me on the lingo.

She said that I could use the term gay for a general description, but that lesbian was more appropriate, because it is more specific for my cousin.

Queer would be the inclusive term,” Zia told me. “Or you could say GLBT, for “gay lesbian bisexual transgender.'”

So be it. The whole affair was really my family’s big, fat queer wedding.

But the pressing questions straight people tend to ask are these: Are these really weddings? Are the participants really married?

No question in my mind. It was a celebration of love and diversity.

Some conservative religious folk keep bringing up children and procreation as the reason there’s a state interest to define marriage as between man and woman. But since that wedding, my cousin has raised a lovely daughter, in a family filled with love.

The truth is there is no good reason to ban LGBT marriages. Period. The change–for equality–is coming.

Addendum: Just heard the audio on the exchange between Justice Kagan and attorney Cooper on 55-year-olds. It’s a good way to refute the procreation idea as the deal breaker on same-sex marriage. Adoption and artificial insemination already diminish the point about procreation,  but using straight 55-year-olds drives the point home. Kagan’s right, most 55-year-olds who want to get married have no interest in kids. Not a lot of kids coming out of those marriages? Probably. But she never met my friend’s 80-something uncle who sired a son. But maybe that’s a Filipino thing. Most of the time, Kagan’s right. Marriage for the AARP crowd isn’t about kids, but no Prop.8 advocate in his right mind would think to try to block those marriages.

Procreation and the preservation of  family are the main points for those who hang on to traditional definitions of marriage. But they’re weak arguments that simply don’t hold up.

Is Supreme Court nominee Elena Kagan an Uncle Tomboy? Feeding frenzy on the sexual identity of the solicitor general: Let’s work it out before it turns into unabashed bigotry

Ever been to the Liberace Museum?

Do you TIVO  the Ellen Show during the workday so you can watch late at night?

Got Melissa Etheridge on your CD rack? 

People are beating around the bush, shall we say, when it comes to the sexuality of Supreme Court nominee Elena Kagan.

Like it matters, right?

“None of our business “should be the official ‘“knee jerk response.”  

What about her hiring of minorities at Harvard? Why did the late great Supreme Court Justice Thurgood Marshall call her a “knucklehead” when the young clerk argued chimed in against  a school busing case?  Slightly more relevant questions.

 But all the world seems stuck on the sexual red herring.

Then again, sex always makes for an exciting vetting process.  It was no charade for Clarence Thomas, whose hearings were sexually charged with references to the conservative jurist’s favorite porn star, Long Dong Silver, and the image of a pubic hair on a soda can.

None of it derailed Thomas.  

And neither should any of the sex talk about Kagan when all is said and done.

But, here we are as a country, working through a new low-point in our collective sexual maturity.

Hard to believe it really, considering  anyone who can afford cable can turn on Logo and see same-sex anything  24-7. You can even see queer themes on the major networks in prime-time.  Wasn’t always that way, so there’s some mark of progress.

But there are still some areas of society where your sexual proclivities are best left unsaid.

In D.C. policy wonks may talk a good game about gays and lesbians and when it comes to the public matters of civil rights, marriage and military service.

But every now and then, it’s just too tempting to gawk before taking the high road. 

That’s where we are with the Kagan sex talk. Anytime you can combine sex with fear in politics and you have a volatile mix ready-made for a nominee’s detractors.

Even in these oversexed times, too many are still uncomfortable when it comes to non-heterosexual  lifestyles.

 It’s as if being gay or lesbian were somehow unpatriotic. 

But this is where the sex talk gets interesting. The most ardent comments have come from out-gays, notably blogger Andrew Sullivan.

When I didn’t see the president introduce Kagan with the standard political husband and kids, the thought occurred to me that perhaps Kagan was a LWOB (lesbian without beard)   But what of it? I’ve stood side by side my entire career with blacks, Latinos, Asians, Native Americans and  gay, lesbian, transgender groups for diversity in journalism.

Why wouldn’t I welcome the thought of a lesbian justice?

What surprises me is that I’ve heard more criticism from liberal and left-oriented groups who want to make sexual identity an issue, saying that to not hear someone acknowledge it is “cowardly.”

It’s no different when I as a “professional ethnicist” look at an issue and make it race relevant while others insist on a colorblind approach.

I know what I call those folks. In the context of sexual identity, would this make Kagan an  Uncle Tomboy? 

The Washington Post reports that the White House did come out pre-nomination and said Kagan’s not a lesbian.  But the rumors have persisted and now we have a full blown, “is-she-or-isn’t-she “debate.

That would be fine if we were all playing fair.

But many are not.  That’s why most people would rather not get into the discussion in the first place. So quickly can it turn into a living, breathing example of modern bigotry in  action.

That, of course, would be so un-American.

But very human.