Affirmative action, gay marriage at stake in Supreme Court rulings

New York TimesJune 22, 2013 


FILE -- Abigail Fisher, center, who is challenging affirmative action, saying the University of Texas should not classify people on the basis of race, waits to speak to reporters outside the Supreme Court on Capitol Hill, in Washington, Oct. 10, 2012. Four blockbusters cases before the Supreme Court in 2013 highlight the tension between formal equality and a more dynamic kind of equality that takes account of historical injustices. (Luke Sharrett/The New York Times)


— Within days, the Supreme Court is expected to issue a series of decisions that could transform three fundamental social institutions: marriage, education and voting.

The extraordinary run of blockbuster rulings expected in the space of a single week will also reshape the meaning of legal equality and help define for decades to come one of the Constitution’s grandest commands: “the equal protection of the laws.”

If those words require only equal treatment from the government, the rulings are likely to be a mixed bag that will delight and disappoint liberals and conservatives in equal measure. Under that approach, same-sex couples who want to marry will be better off at the end of the term, while blacks and Hispanics may find it harder to get into college and to vote.

But a tension runs through the cases, one based on different conceptions of equality. Some justices are committed to formal equality. Others say the Constitution requires a more dynamic kind of equality, one that takes account of the weight of history and of modern disparities.

The four major cases yet to be decided concern same-sex marriage, affirmative action in higher education and the fate of the Voting Rights Act of 1965, which places special burdens on states with a history of racial discrimination.

Formal equality would require that gay couples be treated just like straight couples when it comes to marriage, white students just like black students when it comes to admissions decisions and Southern states just like Northern ones when it comes to federal oversight of voting. The effect would be to help gay couples, and hurt blacks and Latinos.

But such rulings – “liberal” when it comes to gay rights, “conservative” when it comes to race – are hard to reconcile with the historical meaning of the 14th Amendment’s equal protection clause, adopted in the wake of the Civil War and meant to protect the newly freed black slaves. It would be odd, said David Strauss, a law professor at the University of Chicago, for that amendment to help gays but not blacks.

“What’s weird about it would be the retreat on race, which is the paradigm example of what the 14th Amendment is meant to deal with,” he said, “coupled with fairly aggressive action on sexual orientation.”

Gay men and lesbians have yet to achieve formal legal equality. They are not protected against job discrimination in much of the nation, may not marry their same-sex partners in most of it and do not have their marriages recognized by the federal government in any of it. The fact that they are asking for equal treatment may help their cause in the cases challenging the federal Defense of Marriage Act, or DOMA, which for purposes of federal benefits defines marriage as the union of a man and a woman, and Proposition 8, the California voter initiative that banned same-sex marriage.

But Chief Justice John Roberts Jr. suggested in March that ordinary politics would sort things out.

In the three months since that argument, three more states have adopted same-sex marriage, raising the total to 12, along with the District of Columbia.

Differing concerns

Kenji Yoshino, a law professor at New York University, said the two different conceptions of equal protection are animated by different concerns. One is skeptical of government classifications based on race and similar characteristics, whatever their goals. The other tries to make sure that historically disfavored groups are not subordinated.

“Under Jim Crow,” Yoshino said, “both horses ran in the same direction.” Southern states enacted laws that drew distinctions, and those distinctions oppressed blacks.

“These days,” Yoshino said, “the two horses are running in opposite directions.”

There is another possibility: One or more of the cases could fizzle, said Walter Dellinger, who filed an influential brief in the Proposition 8 case. It argued that the failure of officials in California to appeal the judgment against them deprived the Supreme Court of jurisdiction.

Dellinger said all four remaining blockbuster cases suffer from plausible procedural flaws that could lead to their dismissal.

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