NASW Takes Active Role Leading up to Rulings in Five High-Profile Cases

Martin Luther King IIIMartin Luther King III, the oldest son of Martin Luther King Jr., speaks at a rally for the Voting Rights Act in February at the U.S. Supreme Court. The case is one of five in which NASW took an active role leading up to Supreme Court rulings in June.

NASW was active in five high-profile cases that the U.S. Supreme Court ruled on this summer. The cases covered the issues of same-sex marriage, voting rights, affirmative action and adoption — all areas of special concern to social workers.

Through the work of NASW’s Legal Defense Fund, the association joined in filing amicus briefs in all five cases, and NASW members and staff attended rallies and issued statements and letters to support the association’s positions.

DOMA and Proposition 8

In the case U.S. v. Windsor, the Supreme Court struck down the federal Defense of Marriage Act, ruling it unconstitutional. NASW issued a statement supporting the decision, saying it sends a message “that all Americans have a right to enjoy the financial benefits and equal dignity of a recognized marriage.”

“The Supreme Court’s decision … opens the door for many same-sex couples to have access to all the legal rights afforded by marriage,” NASW President Jeane Anastas wrote in a blog post released after the ruling. “This is a critical moment in the continued need to address the legal and social inequalities that hurt LGBT couples and their families.”

NASW is also encouraged by the court’s ruling in Hollingsworth v. Perry (California’s Proposition 8), which opened the door for California to resume issuing marriage licenses to same-sex couples.

“The Supreme Court’s DOMA and Prop 8 decisions are a historic step forward on the pathway to true equity,” NASW CEO Angelo McClain said in a blog post. “Social workers must seize this momentum to end employment-based discrimination and support the Employment Non-Discrimination Act, and end discrimination and harassment in the workplace for lesbian, gay, bisexual and transgender persons.”

Josephine Tittsworth, who has served on the NASW board of directors and the NASW National Committee on Lesbian, Gay, Bisexual, and Transgender Issues, said because of the DOMA ruling, the IRS can no longer discriminate against legally married same-sex couples. In U.S. v. Windsor, same-sex couple Edith Windsor and Thea Spyer were lawfully married in Canada in 2007. When Spyer died in 2009, she left her entire estate to Windsor. But because Windsor was not considered a spouse under DOMA, she was subject to pay a hefty inheritance tax on the estate, a tax for which a heterosexual widow would not have been liable.

“If the couple is in a state where they cannot legally be married, it’s not their fault and the IRS should acknowledge the relationship whether they’re in a state that allows it or not,” Tittsworth said. “When you have couples that love each other, regardless of their sexes, and something happens to one of them, they shouldn’t be penalized by the IRS because it’s a love relationship.”

In the Prop 8 case, Tittsworth said gay and lesbian couples were being discriminated against by a majority, which is heterosexual in California. “The government need(ed) to step in and take action with this just like they did in 1964 and 1968 with the Civil Rights Act,” she said.

Voting Rights Act

Although NASW was pleased with the outcome of the DOMA and Prop 8 cases, the rulings in some other cases were disappointing.

In Shelby Co. v. Holder, the court rejected the need for Section 4b of the Voter Rights Act, said Mel Wilson, manager of the NASW Department of Social Justice and Human Rights. The section allowed the U.S. Department of Justice to develop the formula to be used by designated states — those with a history of voter discrimination based on race — before those states could change voting laws and procedures.

Section 4 is the basis for the preclearance (Section 5) provision of the VRA, which allows the attorney general of the United States to accept or reject the states’ proposed voting laws/procedures, Wilson said. NASW joined a brief in support of U.S. Attorney General Eric Holder, filed by the Leadership Conference on Civil and Human Rights. The brief defends the validity of federal law to uphold the VRA as originally formulated.

“In invalidating Section 4, the Supreme Court essentially rejected VRA, thereby shifting to Congress the responsibility to provide new language in the VRA that satisfies the court’s concerns,” Wilson said. “The Voters Rights Coalition, of which NASW is a part, is currently planning its next steps to restore VRA’s effectiveness. Those steps will include a concerted effort to convince a bipartisan majority of Congress to amend VRA. Perhaps surprisingly, there is a relatively significant number of Republicans in both the House and Senate that are empathic to the need for a strong VRA.”

However, the Voter Rights Coalition realizes it has a great deal of advocacy and lobbying to do in order to obtain the required votes, Wilson said, and this effort could take up to a year.

“Nonetheless, NASW and its coalition partners are prepared to fight to remedy this unfortunate decision by the Supreme Court,” he said.

Baby Veronica

In the case of Adopted Couple v. Baby Girl, NASW filed a brief in support and recognition of the policies upon which the Indian Child Welfare Act is based and best practices in child welfare when parental rights are at risk of termination.

“NASW joined with many child welfare advocates including the Child Welfare League of America, Casey Family Programs and the National Indian Child Welfare Association in filing a brief,” said Joan Levy Zlotnik, director of the NASW Social Work Policy Institute.

The child’s biological mother arranged the adoption with a South Carolina couple, and the baby was transferred to them shortly after she was born. The biological father, a Native American, relied on the Indian Child Welfare Act to secure his parental rights, saying he misunderstood a document he signed and was under the impression he was releasing the child to her mother. The South Carolina State Supreme Court issued a ruling in his favor and the child was transferred to the father in Oklahoma. The adoptive couple appealed to the U.S. Supreme Court, challenging the applicability of ICWA, which has more stringent procedural standards for termination of parental rights than South Carolina state law.

Although the U.S. Supreme Court did not strike down the ICWA, it ruled that the act’s provisions did not apply to a situation like this, where the biological parent had not established his custodial rights as a father prior to the adoption. The court reversed the South Carolina decision, and in a subsequent proceeding denied a plea from the father to delay the transfer of his daughter back to the adoptive couple, who raised the girl for two years. She has lived with her biological father since 2011.

NASW filed an amicus brief in the U.S. Supreme Court along with child welfare organizations in support of the ICWA and high standards in child welfare proceedings to assure that fair procedures are followed when parental rights are terminated. NASW Associate Counsel Sherri Morgan said the association will monitor the developments in the implementation of the U.S. Supreme Court decision in this case, which has been complicated by further legal conflict.

Affirmative Action

In the last of the five cases, NASW filed a brief in support of the University of Texas, in Fisher v. University of Texas at Austin. The school’s admissions criterion was challenged when a white female sued the school, saying she was refused admission because of her race. The court made a procedural ruling that sent the case back to the appeals court for a closer review of the university’s decision to include race as an admissions factor.

The long-term effects of the Supreme Court’s decision in this case are unclear and will take time to emerge, said Darla Spence Coffey, president of the Council on Social Work Education.

“Although affirmative action was not struck down, per se, the decision has placed a heavier burden on universities to be transparent about their admissions processes,” Coffey said. “To the extent that this extra burden may influence universities to abandon practices to ensure a diverse student population, it would be very troublesome for social work education.”

Diversity among students, faculty and practitioners makes for a fuller, more enriching experience for all, including for those social workers serve, she said.

Morgan said previous Supreme Court decisions, such as Grutter v. Bollinger (2003), which NASW also supported, affirmed that diversity in higher education is a compelling state interest.

Briefs can be downloaded from the Amicus Brief Database.