Licensee Login

Feature Article

The United States Supreme Court takes on diversity--and inclusion

By Heather Smith

2013 marks the start of two landmark cases making their way to the United States Supreme Court. Both of these cases deal with civil rights issues – voting rights and gay marriage. At the same time, both cases involve diversity and, ultimately, inclusion. Will gay couples be included in the civil right of marriage? Will African Americans maintain the right to vote in states that have historically had a problem with extending that vote?   The following article will provide important background information on these cases so that you are more informed.

United States v. Windsor

Edie Windsor and Thea Spyer, partners of over forty years, married in 2007 in Canada. And, while New York State recognized their marriage, the federal government did not. Spyer died in 2009, leaving her entire estate to Windsor. Had their marriage been between a man and a woman, Windsor would not have been required to pay estate tax. But she ended up paying an excess of $363,000 of federal estate tax on her inheritance. In 2010, Windsor sued the government, arguing that DOMA (Defense of Marriage Act) violated the equal protection clause of the U.S. Constitution.

This case challenges Section 3 of DOMA in particular, which defines marriage for federal purposes as only between a man and a woman. Windsor’s case was filed by Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the ACLU (American Civil Liberties Union), in the U.S District Court of the Southern District of New York. Attorney General Eric Holder issued a statement in February of 2011 stating that, due to the Obama administration’s determination that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” it could no longer defend Section 3. However, in April of that same year, Paul Clement of the Bipartisan Legal Advisory Group (BLAG) from the House of Representatives filed a motion asking to be allowed to intervene in the case “for the limited purpose of defending the constitutionality of Section 3.” His motion was not opposed by Department of Justice attorneys.

Then on June 6, 2012, Judge Barbara S. Jones, of the United States District Court for the Southern District of New York, ruled Section 3 unconstitutional, as it violated Windsor’s rights of equal protection under the Fifth Amendment, and ordered Windsor to receive a tax refund.

Despite this ruling, the book was not closed on Windsor’s case. On June 14, 2012, the Justice Department filed a notice of appeal with the Second Circuit Court of Appeals in order to facilitate BLAG’s defense of the statute. However, BLAG filed a motion to dismiss the Second Circuit appeal claiming that “the Supreme Court has made clear that a party has no standing to appeal when the lower court has granted all the relief the party requested.” Since Judge Jones had ruled in favor of Windsor, BLAG said there was no reason to pursue the case. The Department of Justice rejected this motion, asserting that, since the decision of the District Court could not cease enforcement of Section 3, Windsor remained an “aggrieved party.”

Windsor’s attorneys filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, requesting the Second Circuit’s review.  This would mean that the case would be heard without a decision from the United States Court of Appeals, for the purpose of expediting the proceedings, in this case due to the plaintiff’s health and age. Additionally, on September 11th, the Department of Justice filed a petition for a writ of certiorari which would bring the case before the Supreme Court. Despite the filing, oral arguments in the Second Circuit occurred on September 27th, heard by Chief Judge Dennis Jacobs, and Judges Christopher F. Droney and Chester J. Straub. The District Court’s ruling was upheld. This was the first federal court of appeals decision to hold that laws classifying people based on their sexual orientation should be subject to intermediate scrutiny, meaning that, in order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest that is substantially related to that interest.

On December 7, 2012, the Supreme Court granted certiorari for United States v. Windsor, accepting the Department of Justice’s petition. In addition to the question presented by the Department of Justice (“Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection”) the Supreme Court has asked the parties to argue two other questions: whether the government’s agreement with the Second Circuit’s decision deprived the court of jurisdiction to hear the case, and whether BLAG has the legal right to be involved in the case.

Windsor said of these escalating events: “The truth is, I never expected any less from my country.”

Oral arguments for this case were heard before the Supreme Court on March 27, 2013.

http://www.scribd.com/doc/100866552/12-2335-94
http://www.justice.gov/opa/pr/2011/February/11-ag-222.html
http://www.huffingtonpost.com/2012/07/16/edie-windsor-doma_n_1675983.html

Shelby County vs. Holder

In 2006, the United States’ Congress reauthorized the Voting Rights Act of 1965 for 25 years. Included in this Act is Section 5, which requires certain “covered” jurisdictions to obtain federal preclearance before making any alterations to their election laws. This means that no changes shall occur until “the jurisdiction demonstrates to federal authorities that the change ‘neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.’”

Shelby County in Alabama is asserting that this preclearance exceeds Congress’s power to enforce the Fourteenth and Fifteenth Amendments, as well as violates the Tenth Amendment and Article IV. Similar complaints have been voiced, saying that the Voting Rights Act subjects the covered jurisdictions to a double standard and infringes upon their state sovereignty rights. Shelby County argues in this case that the conditions of the Voting Rights Act (VAR) are no longer necessary to fight regression, and that the conditions are antiquated.

Defending the VRA will be the NAACP Legal Defense and Educational Fund, Inc., representing Defendant-Intervenors, including five black ministers and a councilman from Shelby County whose district was eliminated, but later restored thanks to the VRA.

In 2008, Calera, a city in Shelby County, redrew its political boundaries without receiving federal clearance. It then conducted an election which was legally unenforceable. As a result, the city’s only black councilman, Ernest Montgomery, lost his seat. However, because the redrawn boundaries were not compliant with the VRA, Calera was required to draw a “nondiscriminatory redistricting plan and to conduct another election with the legally approved plan.” In this election, Mr. Montgomery regained his seat.

The Supreme Court has previously, and in an unbroken line of cases, upheld the constitutionality of Section 5 since its passage in 1965. According to the NAACP, it would be “extraordinary” for the Court to strike down this provision of the VRA.

Cornell University states that “the central issue in this case is whether Congress’s 25-year extension of sections 4(b) and 5 of the VRA exceeded its authority under the Fifteenth Amendment. Shelby County argues that this extension was beyond Congress’s authority…Holder argues that the extension was within Congress’s authority, and was necessary to counter regression in voting practices among states with a history of restrictions on minority voting rights.”

This case was first decided by Judge John D. Bates of the United States District Court for the District of Columbia on September 21, 2011. He upheld the constitutionality of Section 5. This case is an appeal from the judgment of the U.S. Court of Appeals for the District of Columbia Circuit on May 18, 2012.

Oral arguments for this case were heard by the Supreme Court on February 27, 2013.

Sources:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv0651-83

http://www.naacpldf.org/files/case_issue/Shelby%20Case%20Overview%20Feb%2010%202013.pdf
http://www.naacpldf.org/case/shelby-county-alabama-v-holder
http://www.law.cornell.edu/supct/cert/12-96

Cultural Diversity at Work Archive — An Extraordinary Resource!

The Cultural Diversity at Work (CDW) Archive is an online database of almost 1,500 articles, tools and resources on diversity, inclusion and cultural differences. You can use the Archive to increase cultural intelligence—for individuals, teams, and organizations!  With cultural intelligence, you have a path toward inclusion! 

The Archive is loaded with best practices and innovative solutions.
Learn more about the Archive. Purchase a Content License for your organization.