The end of this year’s Supreme Court term brought blockbuster decisions: on the Defense of Marriage Act, California’s Proposition 8, the Voting Rights Act, affirmative action, workplace harassment and discrimination, and adoption of American Indian children. The reverberations of this week’s Supreme Court rulings are already being felt all over the United States, including right here in Minnesota. Here’s what Minnesotans can expect from the decisions.
The ruling: The court’s decision keeps affirmative action in place, but opens race-conscious college admissions policies to more scrutiny. The University of Texas’s admissions policy, which used race as one of many factors in the admissions process, will go back to a lower court. The school will have to prove to the lower court that their race-conscious policy is necessary.
What it means in Minnesota: “What is important in Minnesota is for our colleges and universities to not panic as a result of the Supreme Court’s ruling. What is concerning is the fact that schools with various admissions policies could be subjected to strict scrutiny, if there is ever a legal challenge,” said Nekima Levy-Pounds, a St. Thomas law professor who focuses on social justice issues.
The Texas policy in question used race as one factor among many. The University of Minnesota also uses a “holistic review” to decide which students to admit. Race is considered.
U of M President Eric Kaler announced that the school’s policies will undergo a review process, but admissions spokesperson Rachelle Hernandez does not appear to be panicking. She said the policy already aligns with the University’s mission and adheres to earlier court decisions related to affirmative action.
Said Levy-Pounds, “I think Minnesota is particular. We definitely should continue to keep this issue on the radar screen and be vigilant about ensuring that our college and university campuses are racially and economically diverse, because our demographics are changing so rapidly.”
Voting Rights Act
The ruling: Under Section 5 of the Voting Rights Act, certain places require federal approval if they want to change their voting laws. The places in question are ones with a history of racial discrimination. The Supreme Court ruled that the portion of the law that determines those localities is unconstitutional and must be reviewed and changed. Until then, those areas once overseen by the federal government via Section 5 are free to change voting laws as they please.
What it means in Minnesota: “The photo I.D. amendment that we defeated last year came from somewhere,” said TakeAction Minnesota director Dan McGrath. “It came from other states that had worked very hard to restrict the right to vote. The regressive policy ideas that are being hatched in Alabama, in Texas, that have come up the Mississippi to Wisconsin, eventually make their way to Minnesota.”
McGrath says localities no longer covered by Section 5 of the Voting Rights Act now have more leeway to restrict people of color’s ability to elect officials who represent their interests. “Even if Minnesota sends sterling representatives to Congress and the U.S. Senate, they are going to have to contend with elected officials from other states who don’t feel accountable to the same things that we do. That means that federal policy is going to be a step behind where Minnesota wants be,” he said.
Baby Veronica and the Indian Child Welfare Act
The case: The Supreme Court ruled 5 to 4 that the Indian Child Welfare Act does not require an adoptee known as Baby Veronica to remain in custody of her biological Cherokee father. Veronica’s biological mother put the infant up for adoption after the biological father stated that he would not be involved in her upbringing. When the father found out the baby was up for adoption, he sued for custody. A white couple was already on the verge of legally adopting Veronica. The father argued the Indian Child Welfare Act required the baby to stay in his custody. The Supreme Court disagreed, and now the case will go back to a South Carolina court, where the child’s future will be decided.
What it means in Minnesota: ICWA was created partly as a response to the long years when American Indian children were forcibly removed from their homes and sent to boarding schools or to white adoptive families. The wounds imparted by that legacy are still open in Minnesota, a state with one of the highest concentrations of American Indians in the country.
According to Shannon Smith, director of Minnesota’s ICWA Law Center, the majority of cases to which ICWA applies in the state are unrelated to adoption. A case similar to Baby Veronica’s could arise here, but Smith said it’s uncommon. ICWA is more frequently used in child protection cases. When a county intervenes in cases of domestic abuse, mental health issues, or chemical dependency in an American Indian home, ICWA mandates that the tribe have a say in what happens.
Although the court did not overturn ICWA, which would have a major impact on Minnesota, some say that the ruling diminishes tribal sovereignty. “In the tribal community, children are seen as sacred, and they’re necessary for the tribe to continue,” Smith said. “The tribes are sovereign, and they have an inherent interest in protecting members. The idea [that is troubling to some tribal members is] that that is not being appreciated or not being recognized.”
Defense of Marriage Act
The ruling: The section of the Defense of Marriage Act that barred same sex couples married couples from receiving federal marriage benefits is unconstitutional.
What it means in Minnesota: When same-sex marriage becomes legal in Minnesota this August, married individuals will receive Social Security survivor benefits, should their same-sex spouse die. Same-sex couples will file their taxes together. A U.S. citizen’s same-sex spouse will qualify for a green card. Individuals covered under the Family Medical Leave Act will be able to use leave time to care for a sick, same-sex spouse.
“I’m 46. I have never lived in a place where I can get married. For me, this is some brave new world,” said Phil Duran, legal director of OutFront Minnesota and incoming president of the Minnesota State Bar Association. For anyone 40 years younger, who eventually comes out, everything is different. “They will never know a world where marriage wasn’t possible. They will never even be able to wrap their heads around the idea that marriage was a controversial question. How will they imagine their lives? Will they see limitations at all?”
The ruling: Gay marriage is once again legal in California. Same sex marriage was legalized in the state until a voter referendum banned it. A lower court ruled that the referendum didn’t count, so referendum opponents tried to appeal. The Supreme Court said they don’t have the right to do so. Thus, the lower court’s ruling stands and same-sex California couples can marry.
What it means in Minnesota: At first glance, Proposition 8 has very little to do with Minnesotans, unless they plan on moving to California. But according to OutFront Minnesota’s Phil Duran, the Proposition 8 case may set a precedent that could have a big impact in years to come. “I think most people understand that not too far down the road, a case will return to the Supreme Court that asks that same question [asked by the court in California]: does the federal constitution prohibit states from excluding same sex couples from marriage?”
Duran predicts that the California case, upheld by the Supreme Court, will influence that eventual decision. Until then, same-sex marriages officiated in Minnesota will face ambiguities in other states where their marriage has not been legalized. Their federal benefits may not apply.
The ruling: The court ruled that an employee is only considered a “supervisor” if they have the power to hire and fire staff. That limits the cases in which an employer can be held responsible for harassment carried out by a worker in a supervisory role.
What it means in Minnesota: “In janitorial and security positions… it’s very common to have someone who’s called the lead. They’re not a supervisor, because they can’t hire or fire. They play a role in scheduling, hand you your keys to go up to your floor to clean. They’re in a position of authority,” said Javier Morillo, president of Service Employees International Union Local 26, which represents janitors and security personnel in the Twin Cities. “I know from personal experience people who have suffered at the hands of people in that position. I think it’s ludicrous to say the employer has no control over it or no management over it. It sets a higher bar for the complainant to be able to prove harassment and the knowledge of the employer.”
“The Supreme Court has significantly enhanced an employer’s ability to defend against harassment claims,” said Joe Schmitt, a defense lawyer who has represented corporations including Target and Best Buy. Schmitt said the ruling also goes against the Equal Employment Opportunity Commission’s recommendations. He said it sets a precedent for courts to decline to follow that guidance. “That’s a much bigger deal than just this one case. We’re thinking about a lot of different statutes and how they’re going to be interpreted.”
The ruling: The court increased the standard an employee has to meet in order to prove a workplace retaliation claim.
What it means in Minnesota: “This one is actually really frightening,” said SEIU Local 26 president Javier Morillo. “It creates a higher bar for proving retaliation, which is to say that the worker would have to show that that is the sole reason that action is being taken against them, as opposed to what always, always happens in any instance of retaliation, which is that they are shrouded in all other kinds of complaints against the worker. So someone being retaliated against for union organizing might get written up for not cleaning.”
Morillo said there have been a number of cases in Minnesota where workers have been fired after complaining about issues such as safety violations. “Most employers are not dumb enough to just say, ‘We’re firing you, because you are unionizing.”
Defense lawyer Joe Schmitt is less certain that the ruling will have major practical impact on Minnesota anytime soon. The Minnesota Human Rights Act has its own prohibitions against reprisals, he said. But state courts commonly follow the U.S. Supreme Court’s lead. Ten years down the line, the difference may be more stark.
• What do this week’s Supreme Court’s decisions mean to you? Marriage equality, voting rights, affirmative action — and more
• How will the Supreme Court ruling on the Defense of Marriage Act affect Minnesota’s same-sex couples?
Correction 6/27: DOMA section clarified – only one section of DOMA held unconstitutional.