Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Understanding Upcoming Supreme Court Decisions
Julia K. Stronks
January 11, 2013
By Julia K. Stronks
This is the first of a two-part series highlighting important issues before the Supreme Court.
This spring the United States Supreme Court will hand down a number of important decisions. In anticipation of the media firestorm that will accompany two domestic civil rights decisions, and the likelihood that two important international decisions will be ignored, I’d like to offer an overview of the issues that Christians should be attentive to in the coming months.
One of the first things to consider is whether the Court has a role to play in a biblical understanding of government. The American political system uses three techniques to dilute power. We use representatives rather than having a system of direct democracy because representatives can filter through the passions of the people to decide what is best for the whole. We have a federalist system that divides and layers responsibilities between the federal and state governments. And, we have separation of powers in which the legislative, executive and judicial branches each check the power of each other.
While the United States government is not based on biblical precepts, the idea that power should be divided is consistent with a biblical understanding of what it means to be human. Humans are fallen, so power must be made to “check” power. Having courts assess whether state and federal policies are consistent with the Constitution is one way that our system balances the power of different groups. This means that while we might be tempted to say that the affirmative action and same-sex marriage cases that the Supreme Court will analyze are about the wisdom of the policies themselves, the Court will focus not on the wisdom but on the constitutionality of the policies.
In the same-sex marriage cases some might think that the issue is whether same-sex unions are really marriage. The Center for Public Justice has argued that marriage is not created by human beings and recognition of same-sex marriage is a legal error. But, the cases before the Supreme Court raise different issues. In Perry v Brown the Court will ask whether California voters may take away recognition of marriage for same-sex couples after it had been granted by the state legislature. In Windsor v U.S. the Court must consider whether the federal Defense of Marriage Act intrudes on areas that constitutionally should be left to the states. Questions like “who should make the rules” and “when can a right be taken away” will be the focus of the Court rather than the justice of same-sex marriage.
In Fisher v University of Texas at Austin the plaintiff, who is white, argues that race-conscious admission standards discriminate against her. The University of Texas has an admissions policy that considers race, along with a number of other issues, to compile a diverse class. Affirmative action cases raise issues related to equal protection. Equal protection is a constitutional right, but no rights are absolute. They are limited and balanced when they conflict with each other or when they bump up against compelling societal needs. Years ago the Supreme Court declared that diversity can be a “compelling government interest” for educational institutions. So, when race is only one of many considerations that might lead to diversity in admissions policies, the policies will be upheld as constitutional. In Fisher the Court can choose to overturn earlier Supreme Court diversity cases, or it can say that the Texas policy has too much emphasis on race in its complicated admissions equations. The focus will be on balancing equal protection and diversity.
These cases are complicated. Some Christians will say that any ruling against same-sex marriage is a good ruling, but others will argue same-sex marriage is a right to be acknowledged at all levels of government. Some Christians will say affirmative action is a good solution to right the wrongs of the past, but others will say color-blind policy is the only just way for government to operate. The rulings will be unlikely to please anyone who falls into those categories because the cases are more about the structure of government than they are about the rights themselves. They ask “if I have a right, when may it be taken away?” rather than whether same-sex unions are marriage or whether race-blind policies are good.
The Justices are facing hard questions; so, when the cases are handed down read them. Read the whole opinion and the concurrences and dissents. When we do this we are more likely to understand the nuances and less likely to be swept up in a media frenzy.
—Julia K. Stronks has practiced law and is the Edward B. Lindaman Chair and Professor of Political Science at Whitworth University.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”