DOMA and Proposition 8: The perils and benefits of an activist Supreme Court

The Supreme Court rulings on the Defence of Marriage Act and Proposition 8 stand in stark contrast to the day before, and show a split activist court.

The Supreme Court giveth, the Supreme Court taketh away. Just a day after a landmark ruling that rolled the civil rights movement back several decades on race, two more rulings were handed down by that most august of bodies today that roll it several decades forward on gender. One, by denying the right to appeal of a group of supporters of California's Proposition 8, effectively legalised gay marriage in the US's most populous state.

The other, a much more direct – and therefore important – ruling, found a central clause of the hated Defence Of Marriage Act (DOMA), which denied gay couples equal protection under the law, unconstitutional. So while the day before was a bad day for black Americans, yesterday was a great day for gay Americans.

The one anchovy in the trifle was Justice Antonin Scalia, whose enraged dissenting opinion laid into Justice Kennedy's striking-down of DOMA, and who hinted that, while the Court had chosen not to directly address the national constitutionality of a ban on gay marriage in any state – dismissing the Proposition 8 case and sending it back to the 9th Circuit court of California's decision instead – it is inevitable now that one day the Court will take a similar case on merit at some point in the future. He went on grumpily to say that Kennedy was acting with “real cheek” by saying that the constitutionality of gay marriage wasn't up in front of the court yet.

This kind of judicial activism infuriated Scalia. “We have no power to decide this case,” he raged. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.” This was pretty ironic, actually; just the previous day, Scalia had no such qualms about judicial activism when the court was addressing a conservative issue: he voted enthusiastically to gut the Voting Rights Act – which had been reaffirmed in Congress in 2006 by a huge majority.

It would be wrong to say that hypocrisy about juducial activism is unique to the conservatives on the bench. Justice Ginsberg's anguished dissenting opinion on striking down the Voting Rights Act is in contrast to her full-throated support of Justice Kennedy's majority opinion on DOMA; though she, along with Scalia, voted to send Proposition 8 back to California rather than address its merits there and then it is probably that had they debated the issue she and Scalia would be on different sides. Justice Kennedy is, as usual, the tipping-point between conservatives and liberals on the court – he joined Justice Roberts in voting to strike down the VRA. He is therefore probably the most important Justice.

But Scalia's prediction is probably also correct. The majority opinion by Kennedy on DOMA contains language that will allow for plenty of challenges to the constitutionality of marriage inequality down the line. He said, for example, that DOMA constituted nothing less than a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment, and also that it “humiliates tens of thousands of children now being raised by same-sex couples,” and bases an argument around giving “dignity” to same-sex families. All of these give immediate legal precedent for challenges to state gay-marriage bans. So while this wasn't a day of final victory on marriage equality, it was decisive nonetheless. Sometimes an activist court isn't so bad.

San Francisco's City Hall flies the rainbow flag. Photograph: Getty Images

Nicky Woolf is a writer for the Guardian based in the US. He tweets @NickyWoolf.

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There is nothing compassionate about Britain’s Dickensian tolerance of begging

I was called “heartless” for urging police to refer beggars to support services. But funding drug habits to salve a liberal conscience is the truly cruel approach.

In Rochdale, like many other towns across the country, we’re working hard to support small businesses and make our high streets inviting places for people to visit. So it doesn’t help when growing numbers of aggressive street beggars are becoming a regular fixture on the streets, accosting shoppers.

I’ve raised this with the police on several occasions now and when I tweeted that they needed to enforce laws preventing begging and refer them to appropriate services, all hell broke loose on social media. I was condemned as heartless, evil and, of course, the favourite insult of all left-wing trolls, “a Tory”.

An article in the Guardian supported this knee-jerk consensus that I was a typically out-of-touch politician who didn’t understand the underlying reasons for begging and accused me of being “misguided” and showing “open disdain” for the poor. 

The problem is, this isn’t true, as I know plenty about begging.

Before I became an MP, I worked as a researcher for The Big Issue and went on to set up a social research company that carried out significant research on street begging, including a major report that was published by the homeless charity, Crisis.

When I worked at The Big Issue, the strapline on the magazine used to say: “Working not Begging”. This encapsulated its philosophy of dignity in work and empowering people to help themselves. I’ve seen many people’s lives transformed through the work of The Big Issue, but I’ve never seen one person’s life transformed by thrusting small change at them as they beg in the street.

The Big Issue’s founder, John Bird, has argued this position very eloquently over the years. Giving to beggars helps no one, he says. “On the contrary, it locks the beggar in a downward spiral of abject dependency and victimhood, where all self-respect, honesty and hope are lost.”

Even though he’s now doing great work in the House of Lords, much of Bird’s transformative zeal is lost on politicians. Too many on the right have no interest in helping the poor, while too many on the left are more interested in easing their conscience than grappling with the hard solutions required to turn chaotic lives around.

But a good starting point is always to examine the facts.

The Labour leader of Manchester City Council, Richard Leese, has cited evidence that suggests that 80 per cent of street beggars in Manchester are not homeless. And national police figures have shown that fewer than one in five people arrested for begging are homeless.

Further research overwhelmingly shows the most powerful motivating force behind begging is to fund drug addiction. The homeless charity, Thames Reach, estimates that 80 per cent of beggars in London do so to support a drug habit, particularly crack cocaine and heroin, while drug-testing figures by the Metropolitan Police on beggars indicated that between 70 and 80 per cent tested positive for Class A drugs.

It’s important to distinguish that homelessness and begging can be very different sets of circumstances. As Thames Reach puts it, “most rough sleepers don’t beg and most beggars aren’t rough sleepers”.

And this is why they often require different solutions.

In the case of begging, breaking a chaotic drug dependency is hard and the important first step is arrest referral – ie. the police referring beggars on to specialised support services.  The police approach to begging is inconsistent – with action often only coming after local pressure. For example, when West Midlands Police received over 1,000 complaints about street begging, a crackdown was launched. This is not the case everywhere, but only the police have the power to pick beggars up and start a process that can turn their lives around.

With drug-related deaths hitting record levels in England and Wales in recent years, combined with cuts to drug addiction services and a nine per cent cut to local authority health budgets over the next three years, all the conditions are in place for things to get a lot worse.

This week there will be an important homelessness debate in Parliament, as Bob Blackman MP's Homelessness Reduction Bill is due to come back before the House of Commons for report stage. This is welcome legislation, but until we start to properly distinguish the unique set of problems and needs that beggars have, I fear begging on the streets will increase.

Eighteen years ago, I was involved in a report called Drugs at the Sharp End, which called on the government to urgently review its drug strategy. Its findings were presented to the government’s drugs czar Keith Hellawell on Newsnight and there was a sense that the penny was finally dropping.

I feel we’ve gone backwards since then. Not just in the progress that has been undone through services being cut, but also in terms of general attitudes towards begging.

A Dickensian tolerance of begging demonstrates an appalling Victorian attitude that has no place in 21st century Britain. Do we really think it’s acceptable for our fellow citizens to live as beggars with no real way out? And well-meaning displays of “compassion” are losing touch with pragmatic policy. This well-intentioned approach is starting to become symptomatic of the shallow, placard-waving gesture politics of the left, which helps no one and has no connection to meaningful action.

If we’re going make sure begging has no place in modern Britain, then we can’t let misguided sentiment get in the way of a genuine drive to transform lives through evidenced-based effective policy.

Simon Danczuk is MP for Rochdale.