Earlier today Bloomberg View columnists Ramesh Ponnuru and Margaret Carlson met online to chat about the Supreme Court's decisions on the Voting Rights and Defense of Marriage Acts. Below is a lightly edited transcript.
Margaret: Ramesh, did you cry? I don't mean to get personal with you, but as the decision on the Defense of Marriage Act was announced, I found myself doing all the coughing, nose-wiping, dabbing things I do when I don't want anyone to know I've teared up. When they sang the "Star-Spangled Banner" on the steps of the Supreme Court, I was buttoned up until the Gay Men's Chorus got to the final line about the land of the free and home of the brave. Among the many feelings I had was that the word gay could revert to its original meaning. There are more hurdles to clear but what a deservedly gay moment happened today in front of one of the most beautiful buildings in the city.
Ramesh: I'm not a crier, Margaret, but if I had cried it would have been for totally different reasons. I feel sorry for our much-abused Constitution, for one thing. We seem to have just given over self-government to Justice Anthony Kennedy, who gets to decide whether our civil-rights laws or our marriage laws are out of date. Same-sex marriage is winning the political battles. I don't begrudge the celebrators their happiness, but I wish they had been outside the Capitol instead.
Margaret: If you haven't noticed, Ramesh, nothing happens outside the Capitol because nothing happens inside the Capitol. The court punting the Voting Rights Act back to Congress is so silly. They can't pass a farm bill. They'll somehow bungle immigration. New York City will be underwater before they acknowledge, and do something about, climate change. No wonder the president had to take a few small steps on his own yesterday to lower the amount of carbon ruining the planet. The thought that the VRA has worked its will is ludicrous. Yes, there's no longer a poll tax or literacy test but you only needed to look at all the voter suppression efforts in the last two elections to see how much it's still needed. Efforts at disenfranchisement in the South continue, not as blatant as a poll tax or literacy test but with the same goal: to suppress the minority vote. Those efforts should have to get "preclearance." Being able to sue is not enough. That Congress can "draft another formula" because the court doesn't like the one the VRA has now is ridiculous. They can't decide whether to stop delivering mail on Saturday.
Ramesh: The Voting Rights Act requires every change in voting procedures in some jurisdictions to get precleared by Washington, and which jurisdictions are treated as suspect is determined by what they did 40 years ago. The Supreme Court was right that this treatment is unjustifiably outdated. I don't think it was its place to say so. But it wasn't its place to say which side of the marriage debate is right either, and this court -- especially Anthony Kennedy -- doesn't seem to feel any need for restraint. I do think the sky-is-falling reaction the VRA decision got from liberals has been overwrought. Most of the law is still in place, and the South is not going to be ruled by Paula Deen circa 1981.
Margaret: Given that the Supreme Court doesn't think the formula for determining who needs preclearance is up to date, I hope it gets expanded to include places like Ohio where voter suppression is a big problem. But just look at who is voting in the South when they are propelled to do so with the first black president, and you know there's still a problem. And so to Paula Deen: I have no beef with lard. In a pie crust, there's nothing like it, as my grandmother taught me. So I gave Deen's behavior the grandmother test. Would my grandmother, who didn't utter the phrase "civil rights" but worked alongside many African-Americans as a maid in a downtown hotel, have had Deen's casual reflexive prejudice? She didn't take a promotion to head of housekeeping until one of her black co-workers was made linen manager (yes, there is a hierarchy downstairs). She grew up as a first-class citizen just for being white in a segregated city, but knew what was wrong. Arguments over flying the confederate flag usually contain a romantic notion of the plantation, and so does thinking the South has moved past it because the injustice isn't as blatant as it was in the era of Jim Crow. The Court over-celebrated progress in its ruling with something of a success paradox: Because the VRA worked some, we don't need it anymore. Let's get Justice Antonin Scalia to watch Deen's press conferences.
Ramesh: What he'll see is a woman apologizing for the past. That's not a good reason for living in it. But it's also not the job of the Supreme Court to keep laws in sync with the times -- or whatever Justice Kennedy happens to be feeling this year.
Margaret: Or what Justice Scalia is feeling, which is rage that makes the usually erudite justice incoherent, writing that supporters of gay marriage treat opponents like a "lynch mob." At the heart of his rant is the fear of what tossing out the Defense of (Straight) Marriage Act does to his own marriage. No one is coming to take Mrs. Scalia away from Mr. Justice Scalia. There's a threat to traditional marriage that folks like Scalia see, that isn't there. Nothing would have happened to the Scalias happy household had Liberace been able to marry.
Ramesh: I don't think Justice Scalia suggested that gays, or supporters of same-sex marriage, are a lynch mob. He's right, though, that Kennedy's majority opinion treats everyone who opposes same-sex marriage as an irrational bigot. I can see how that would set Scalia off. Empathy is a great thing, but what ought to be in front of the justices' eyes is the Constitution, and Kennedy doesn't really spend much time on it in his opinion today. See you next time, Margaret, when I promise to be less dyspeptic. (But I still won't cry.)