Newspaper article St Louis Post-Dispatch (MO)

Supreme Court's Term Defies Easy Explanation Equal Treatment under Law, Free Speech Unite the Justices

Newspaper article St Louis Post-Dispatch (MO)

Supreme Court's Term Defies Easy Explanation Equal Treatment under Law, Free Speech Unite the Justices

Article excerpt

FORGET THE USUAL LABELS: Liberal or conservative. Pro-government or anti-government. Activist or restrained.

The major rulings of the Supreme Court's 1995-96 term, which ended Monday, can be explained by the justices' allegiance to two constitutional principles: strict equal treatment under law and freedom of speech, broadly defined. Those two principles bring together the justices from across the spectrum, even if they yield rulings that confound the usual analysis.

Consider the three leading civil rights rulings of the term. The justices struck down an anti-gay state amendment in Colorado, opened the doors of the Virginia Military Institute to women and threw out the majority-black congressional districts in Texas and North Carolina.

The first two decisions were cheered by liberals, the third by conservatives, but each resulted from a demanding application of the 14th Amendment, which says no state shall "deny to any person the equal protection of the laws."

Colorado's voters in 1992 adopted a state initiative known as Amendment 2 that barred gays and lesbians from obtaining legal protections against discrimination based on their sexual orientation.

Normally, the conservative-leaning Supreme Court upholds state laws and defers to the wishes of the voters. But not this time.

The equal-protection clause demands "the law's neutrality when the rights of persons are at stake. . . . Amendment 2 classifies homosexuals to make them unequal to everyone else," wrote Justice Anthony M. Kennedy for a 6-3 majority.

VMI had enrolled only men in its 157 years, and officials of the military academy argued that its harsh, physically demanding style of education was unsuited to women. Federal judges in Virginia could not bring themselves to end the all-male tradition.

The Supreme Court had no trouble doing so. By a 7-1 vote, it brushed aside generalizations about the sexes and ruled that the equal-protection clause simply does not permit the "categorical exclusion" of women from a state-funded school.

But the equal-treatment principle does not always work in favor of traditional victims of discrimination, such as racial minorities or women. As this Supreme Court showed, the rule also can work against them.

In a blow to affirmative action, the Supreme Court voted 5-4 to rule that "racial preferences" in public contracting are unconstitutional, except to remedy proven discrimination.

The same 5-4 majority struck down three "majority-minority" districts in Texas and one in North Carolina. The equal protection clause does not allow state officials to use race as a "predominant factor" in drawing electoral lines, the Supreme Court said.

On Monday, the Supreme Court let stand a federal appeals court ruling that struck down an affirmative-action policy at the University of Texas Law School. Although it was not a final ruling, all nine justices agreed that the equal-protection clause does not allow a two-track admissions policy that sets different standards for white and black applicants.

Free speech is a similarly cherished constitutional principle but also one that sometimes yields surprising results.

In recent decades, the free-speech principle has been built into a powerful pillar of the law, one that stands just as solidly in the nominally conservative court led by Chief Justice William H. Rehnquist. In previous terms, the justices have struck down laws against the burning of flags and crosses as well as measures that outlawed "dial-a-porn." They also unanimously threw out a jury verdict over a crude satire in Hustler magazine.

This term was also a good one for the free-speech principle.

In May, the justices struck down laws in Rhode Island and nine other states that prohibited the advertising of beer and liquor prices - a decision that spells trouble for President Bill Clinton's proposal to ban cigarette ads directed at youth. …

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