So how is this conceptual shift expressed in the Court’s recent rulings? The court’s decisions in DOMA and VRA are perhaps the clearest illustration of this shift. DOMA was the first effort to create a federal act which reduced individual liberty by denying to a portion of the population a right enjoyed by the vast majority. It denied the right of homosexuals to enjoy the benefits and, yes, the burdens, of marriage as recognized in law. DOMA denied to gays and lesbians the freedom to marry – it treated gays and lesbians differently with respect to the social benefit of marriage. Ruling DOMA unconstitutional affirmed the value of equality understood as formal equality, or equality of treatment. As far as the constitution is concerned, the court ruling implies, gays and lesbians are in every way identical to heterosexuals and should not be prohibited from having their unions recognized as marriage in the same ways under the civil law. Equality of treatment. With this ruling, the Court reaffirmed the concept of formal equality at the core of one of the world’s greatest exemplars of liberal political philosophy – the US Constitution.
In the VRA ruling, the court struck down Article Four of the Voting Rights Act which was enacted by Congress as an attempt to ensure compliance with the 14th and 15th Amendments to the US Constitution guaranteeing to every citizen of every state the right to vote unimpeded. The article was intended to ensure that in those states which had either a history of racial exclusion and oppression – typified by efforts to use the law to deny African Americans the vote or to right the shape of districts to guarantee white majorities – would have to obtain federal authorization for any changes to their voting procedures before those changes could be implemented. What is known as ‘prior approval’ required the jurisdiction to prove to the satisfaction of the federal government that the proposed change would not diminish the rights of all citizens, but especially racial minorities, to participate in voting. In a democracy, where voting is the principal means for expression of political will, or satisfaction with the legislature and running of government, undermining the determination of the will of the people – all of the people – similarly undermines the legitimacy of the political system. The court ruled that the requirement for prior approval was unfairly burdensome to the citizens of those jurisdictions who, through the legislative actions of their governments, wanted to change their voting procedures. In striking down the requirement for prior approval, the court affirmed the centrality to the Constitution of the conception of formal equality. To require some, but not all, jurisdictions to obtain prior approval was to hold the citizens of those jurisdictions to a different, more onerous, standard.
Professor & Chair
Department of Philosophy