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WISEMAN: Gay marriage, the Voting Rights Act and Mississippi

For one who teaches federalism and intergovernmental relations the last round of 2013 United States Supreme Court decisions provides a virtual textbook for this fall’s classes. Among other things, the table of contents includes gay marriage and the Voting Rights act.

Fascination has been building for some time over the evolution of power within the states versus the power of the national government. One need only be reminded of numerous state initiatives related to such things as reproductive rights and voting regulations on the right side of the political spectrum and loosening of marijuana laws and legalization of same sex marriage on the left.

Recently, the Supreme Court tinkered with the ground rules enough to reinvigorate the debate surrounding the roles of the federal, state and even local levels of government in specifying how our lives will be lived. Rather than merely rehash the content of the court’s decisions with regard to voting rights and same sex marriage this space will be given to speculation (not prognostication) regarding impacts of these decisions that will perhaps be noticed by Mississippians. In order to accomplish this, a brief refresher civics lesson would be in order.

It would be helpful to recall the “Full Faith and Credit” provision of the United States Constitution. The first sentence of Article IV, Section 1 states that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” In short, a lawful act of one state must be recognized as lawful in a sister state. Would that it would be so simple.

In many ways the decisions of the 2013 Supreme Court with regard to the Defense of Marriage Act and the Voting Rights Act of 1965 revive the debates associated with “Full Faith and Credit” and state versus federal superiority. The Defense of Marriage Act (DOMA) signed by then-President Bill Clinton stated that, for federal purposes, marriage would be defined as being between “one man and one woman.” The Supreme Court, last week, held this act to be unconstitutional. Now, 13 states have already passed legislation legalizing same sex marriage. The question becomes one of what will be the status of a same sex couple married in Maryland and who then moves to Mississippi? It may be helpful to review the “Full Faith and Credit” provisions before answering this. In reality, all laws pertaining to married couples under the old definition are now up in the air. For example, the processes of unraveling on a state-by-state basis, issues of insurable interests and inheritance as they pertain to same sex married couples just begin to scratch the surface.

In the South, the greatest “end zone dance,” however, was reserved for the Court’s action with regard to the landmark Voting Rights Act of 1965 (VRA of 1965). This was the act that finally broke down the walls that in effect had been blocking the implementation of the 15th Amendment to the Constitution for nearly 100 years. The VRA of 1965, among other things, struck down all manner of procedures and tests as requirements to vote that had the effect of keeping African-American citizens from registering to vote and casting ballots in the polling places. A key provision of the VRA holds that in nine states and parts of others any change in voting procedures must pass muster with the U. S. Justice Department before they may be implemented.

While the Court left the Justice Department review process known as “pre-clearance” in place it instructed Congress to rework the rationale for its selection of states to which this provision should apply. Thus, for now at least, there is no basis for enforcing the provisions of the VRA of 1965 geographically. Individuals may still sue, but only as individuals and related classes.

The Voting Rights Act case has embodied throughout its history a number of unintended consequences. Its downfall, even if temporary, promises to be no different. While the VRA of 1965 resulted in a number of districts with significant black majorities, in creating these districts it, in many instances, produced neighboring districts that were mostly white. These districts were said to have been “bleached” in the process, and thus they became bereft of any significant minority influence.

In essence, the VRA of 1965 enabled southern legislatures to engage in legal “gerrymandering” and “packing,” in effect limiting the number of black majority and minority influenced districts. The big question is how far will former Voting Rights Act states go in usurping their freedom from the shackles of the pre-clearance provisions? Additionally, how real and how sustainable are the vows from the African-American community to ratchet up the visibility of their displeasure over losing this tool, particularly in the face of several instances of new voting legislation around the country? Finally, can Republicans politically afford to block efforts to provide the remedies required by the Supreme Court?

Certainly, with regard to these cases and several others, the states have moved to center stage. The overriding question becomes, “What next?” One would guess that the pathways from states and localities to the U.S. Supreme Court are about to become crowded. The role of the Civil Rights attorney of the 1960’s is about to be revived and expanded. Voting rights, gay rights, immigrant rights and others will be the grist of the judicial mills in the coming years.

Dr. William Martin Wiseman is director of the John C. Stennis Institute of Government and professor of political science at Mississippi State University. Contact him at marty@sig.msstate.edu.


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