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And Then There Were Six

June 24, 2013

The Supreme Court today issued decisions in five cases, leaving six cases to be decided. The estimable SCOTUSblog reports that the Court has scheduled another decision day for tomorrow. SCOTUSblog speculates that there will be at least one other decision day later in the week.

Today’s decisions involved some important issues. In two cases, the Court cut back on employment discrimination protections of Title VII, the federal non-discrimination statute. In a third case, the Court heightened the wall that a public entity has to climb over to justify the use of race as a factor in achieving diversity – specifically in that case, diversity in an undergraduate student body.

Three of the six cases involve property rights, criminal law, and Native American child welfare rights. The other three are three of the biggest of the entire Supreme Court term: a case considering the Justice Department’s powers under the Voting Rights Act, and two same-sex marriage cases.

The two same-sex marriage cases are Hollingsworth v. Perry and United States v. Windsor.  The Hollingsworth case raises the question whether the U.S. Constitution requires states to allow same-sex marriages. I do not expect the Court to answer that question with a simple “yes,” although I expect that Justice Kennedy will stand with the four liberal justices to prevent the Court from doing long-term damage to the cause of marriage equality.

The Windsor case presents the question whether the Constitution requires the federal government to recognize same-sex marriages that were legally performed under applicable state law. I expect the Court to answer that question with a 5 – 4 “yes,” although there may be a division among the majority on the rationale. The four liberal justices are likely to say that equality of marriage rights is guaranteed to same-sex couples, whereas Justice Kennedy is more likely to say that federal refusal to recognize some marriages authorized by state law is an invalid intrusion into state prerogatives.

The Supreme Court will begin announcing tomorrow’s decisions beginning at 10 a.m. tomorrow. SCOTUSblog covers them live, and seems to be the fastest and most reliable source available.

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