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Recent Supreme Court cases reflect founding fathers' ideals

Thursday , March 06, 2014 - 12:27 PM

E. Kent Winward

In the 237 years since our country began, much has changed, but it is strangely comforting to know that we at least still fight about the same things as the founding fathers. Two recent Supreme Court decisions on two different laws passed by Congress — the Voting Rights Act and the Defense of Marriage Act — show that the more things change, the more the news is like your American history class.

Our country was founded when 13 separate colonies decided to band together to form a unified country. Each colony had its own form of government, its own history. The slavery issue was divisive from the very beginning. The Constitution represented a compromise of the battle between the newly formed states and the federal government. The 10th Amendment granted any unspecified rights in the Constitution to the state governments, including defining marriage and handling elections.

Besides being worried about the federal government’s power over the individual states, checks and balances were also put into place for the legislative, judicial and executive branches. Having lived under a tyrannical English government, the idea was to limit the power of the government to infringe on people’s life, liberty and pursuit of happiness. (That is what all the parades and fireworks were about on Thursday.)

The Voting Rights Act and DOMA both illustrate these two great conflicts that arose at the birth of our nation: States versus federal and legislative versus judicial.

Legislative v. judicial

Two hundred and 10 years ago, the Supreme Court made a ruling in Marbury v. Madison that it has not only the ability, but also the constitutional duty to overturn unconstitutional legislation passed by Congress. The Constitution never specifically granted the Supreme Court the right to overturn legislation, but after Justice Marshall’s decision on Marbury, the ability of the Supreme Court to overturn Congress has been our law.

In the Voting Rights Act case, Shelby v. Holder, Chief Justice Roberts quoted Justice Oliver Wendell Holmes from 1927, “Striking down an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’ ” And the Supreme Court did it twice in one week.

Both congressional acts had passed with wide bipartisan support. The legislative votes on the Voting Rights Act were 393-33 and 98-0. The Supreme Court vote overturning the law? — 5-4. Sen. Orrin Hatch’s response to the Voting Rights Act being overturned was that Congress “ought to let it sit for a while” before trying to pass a new law.

Hatch wasn’t quite as magnanimous on DOMA, saying, “It’s pretty hard to believe that the Supreme Court would say that the 85 senators, 342 members of the House of Representatives and Democrat President Bill Clinton — all who supported DOMA when it was signed into law nearly 20 years ago — voted for DOMA literally seeking to injure and impose stigma on gay individuals.”

While DOMA had only slightly fewer votes than the Voting Rights Act, the law had been passed overwhelmingly by Congress, but that didn’t stop the Supreme Court from overturning the decision 5-4.

Justice Marshall’s decision in Marbury is alive and kicking.

State v. federal

The decisions overturning the Voting Rights Act and DOMA were affirmations of the States’ rights to dictate their election and marriage laws. The Voting Rights Act was struck down because it imposed different standards on different states without any current factual basis for voting discrimination. DOMA was struck down because it ignored different marriage standards of different states and didn’t treat them equally to other states’. Listen to the similar reasoning in the two decisions:

Voting Rights Act: “ ‘[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ”

DOMA: “Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

This lack of understanding of what the Supreme Court actually decided in the DOMA case leads to statements like this in the June 27 front-page article in the Standard, “Utah Gov. Gary Herbert opposes the court’s actions. ‘I have long believed that marriage is a state’s rights issue.’ ” I’m not sure why Governor Herbert opposed the court’s actions, since the Supreme Court came down on the side of states’ rights.

So states and the federal judiciary won last week. And this week we celebrated our independence from England. And we will continue to fight out the same balancing battles in our courts and legislatures, the battles that have made our country great.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or

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