Professor Pam Karlan spoke to a full-house on Wednesday, October 23, exploring the holdings in two landmark cases: Shelby County v. Holder, which struck down a key portion of the Voting Rights Act of 1965, and United States v. Windsor, which struck down a key portion of the 1995 Defense of Marriage Act. Professor Karlan framed these as “a tale of two cases,” representing “the best of times and the worst of times” for American progressives. On the one hand in Windsor, the Supreme Court invalidated an act of Congress which enshrined discrimination against LGBT Americans. On the other hand in Shelby County, the Supreme Court invalidated an act of Congress which had empowered the federal government to stop states from taking actions which could disenfranchise minority voters.
Professor Karlan explored the way in which “liberty” and “dignity” were seemingly relevant themes in the Supreme Court’s decisions in both cases. With respect to Shelby County v. Holder, the Court focused on the liberty and dignity of the states and local governments that was put at risk by the Voting Rights Act Section 4(b) provision requiring states with a history of voting discrimination to obtain preclearance from the federal government before changing voting procedures or practices.Professor Karlan then discussed the Court’s opinion that it was the liberty and dignity of same-sex marriage that was put at risk by Section 3 of the Defense of Marriage Act in United States v. Windsor. The Court argued that Section 3’s restriction of the terms “marriage” and “spouse” to apply only to heterosexual unions violated the same-sex couples’ Constitutional rights to liberty and equal protection.
Professor Karlan explained a theory for why these decisions came out the way they did: public opinion has trended toward the cause of LGBT equality, and at the same time, away from civil and voting rights for racial minorities. She suggested that legal solutions may involve looking to other areas within the Constitution, such as the Elections Clause, and within the Voting Rights Act, such as Section 2 litigation and the Section 3 bail-in provisions. She urged the audience to consider new ways to build coalitions around racial minority civil rights, similar to the broad coalition that has developed in support of LGBT rights and the coalition that once supported those very same racial civil rights. Ultimately, Professor Karlan emphasized that success will require liberals and progressives to find a way to again make voting rights salient beyond directly affected minority groups.