The Supreme Court saved its hot-button rulings for last, as usual, and the Justices delivered something to please--and outrage--every band of the cultural spectrum. They delighted progressives by striking down the federal Defense of Marriage Act and rejecting a lawsuit that sought to uphold a ban on same-sex marriage in California. The same folks were furious, however, when the court rolled back a key enforcement mechanism in the historic Voting Rights Act and ordered an appeals court to look skeptically at the University of Texas' affirmative-action program. Those opinions were hailed by many conservatives.
Further signs of seesaw struggle on a Janus-faced court? Not necessarily. The thread running through all these cases is the possibility of change in American society. The differing reactions suggest what sorts of changes Americans believe in.
Justice Anthony Kennedy was only stating the obvious when he wrote in his decisive opinion that changes in thinking about same-sex marriage have come "slowly at first and then in rapid course." When President Bill Clinton signed DOMA into law in 1996, no state sanctioned marriages of same-sex partners. The idea that the Constitution would require Uncle Sam to recognize such marriages was a fringe theory at best. But now a dozen states and the District of Columbia permit them. Suddenly the question of recognizing some legal marriages while spurning others was a matter of equal rights. "The differentiation demeans" same-sex couples, "whose moral and sexual choices the Constitution protects," Kennedy wrote.
The Justices declined to decide in the California marriage case whether the ballot initiative called Proposition 8 unconstitutionally discriminated against same-sex couples by outlawing their unions. Instead, the court ruled that the ban's supporters had no standing to appeal a lower-court holding against Prop 8. The almost certain outcome will be freedom to marry in the Golden State.
If such change is possible in this area, is it also possible in the vexed and sordid realm of race relations? The court thinks so. Or at least Kennedy--again the deciding vote--thinks so. In the voting-rights decision, he joined Chief Justice John Roberts' opinion, which holds that the ghosts of the 1960s can no longer justify harsher treatment by the federal government of certain states and counties compared with others. Under the Voting Rights Act, passed in 1965, much of the South has been required to secure federal permission before altering election laws. But Roberts noted how much has changed since those bad old days: in five of the six states originally covered by the act, black voter turnout now exceeds white turnout. Measures crafted in an era of poll taxes and murderous repression require fresh analysis in a time of black mayors and an African-American President. Today's laws "must be justified by current needs," Roberts wrote.
Justice Ruth Bader Ginsburg warned in her dissents from the voting rights and affirmative-action rulings that less has changed than meets the eye and that the old tools for fighting racism are as necessary as before. "What's past is prologue," she wrote, quoting Shakespeare. That's true, sometimes. But not always. Sometimes, the past can be overcome.
Change They Can Believe In: How the Justices Voted