Gay Marriage

Justice Kennedy Let the Voters Ban Affirmative Action. Will He Let Them Ban Gay Marriage, Too?


Credit: C-Span

In his opinion last month upholding a Michigan constitutional amendment forbidding the use of affirmative action in state colleges and universities, Justice Anthony Kennedy sang the praises of democracy. "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," Kennedy wrote in Schuette v. Coalition to Defend Affirmative Action. "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

In addition to banning affirmative action, Michigan voters have also banned gay marriage. In 2004 the state's electorate weighed in on that sensitive issue, voting to amend the state constitution to define marriage as "the union of one man and one woman." 

That 2004 amendment is now under attack in federal court. Earlier this week, Bill Schuette, Michigan's attorney general, urged the U.S. Court of Appeals for the 6th Circuit to uphold the ban. "Our system of democracy is based on the premise that the people are capable of deciding even sensitive issues on 'decent and rational grounds,'" his brief states, in a none-too-subtle nod to Kennedy's affirmative action ruling.

At SCOTUSblog, Lyle Denniston notes that Schuette is not the only state official trying to hitch a gay marriage ban to Kennedy's wagon. "In two [other] federal appeals courts," Denniston writes, "where three such bans are now under review, attorneys defending the bans have sought to take advantage of the Justices' April 22 decision in Schuette v. Coalition to Defend Affirmative Action."

The strategy here is obvious. If the Supreme Court trusts the voters when it comes to a hot button issue like affirmative action, why not also trust them when it comes to the fractious issue of gay marriage?

The irony is that Justice Kennedy, the author of the affirmative action ruling now being deployed, just happens to be the Supreme Court's leader when it comes to invalidating state and federal restrictions on gay rights. In the 1996 case Romer v. Evans, for example, Kennedy's majority opinion struck down Colorado's Amendment 2, a voter initiative that had amended the state constitution in order to forbid government officials from taking any action designed to protect gays and lesbians from discrimination.

Similarly, in 2003's Lawrence v. Texas, Kennedy nullified the Lone Star State's Homosexual Conduct Law, a democratically enacted statute criminalizing same-sex relations. And then there's last term's United States v. Windsor, where Kennedy invalidated a portion of the Defense of Marriage Act, a federal law passed by wide bipartisan margins in Congress and signed by President Bill Clinton.

To say the least, Kennedy has shown little interest in deferring to the democratic process when gay rights are at stake. Yes, he sided with Michigan voters in the affirmative action case; but keep in mind that Kennedy has never voted in favor of an affirmative action program during his three decades on the Court. By contrast, he has consistently ruled in favor of gay rights—voting public be damned. I expect he'll continue that trend of aggressive judicial review when the Supreme Court finally tackles a gay marriage ban on the merits.

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  1. Democracy is the will of the people and not to be challenged, except when the people get it wrong.

  2. I would hate to believe that the justices we elected to the United States Supreme Court would act inconsistently.

  3. That would be a great idea if this were a democracy without a constitution.

  4. Well, rights should not be subject to a vote.

    Kennedy based his ruling in Lawrence and Windsor in the liberty right of the due process clause, while in Schuette, and most other affirmative action cases, the issue was an equal protection one. I think he sees the kind of laws at issue in Lawrence and Windsor to be ‘picking on’ gays particularly, while he (rightly in my opinion) does not see denying races a preference as ‘picking on’ them.

    1. I dont disagree, but that isnt what he said.

      He could be consistent AND continue voting the same way, but he doesnt write decisions from principles, so this is what he gets.

    2. But how do you establish rights in the 1st place? They don’t come from spacemen. Even if they come from God, God has a funny way of never talking for himself. It’s people all the way down.

      1. Most people believe God HAS “talked for Himself”. And almost all of the major religions believe that adultery, homosexuality, and beastiality are wrong.

        Therefore, if rights come from God, then it makes sense to not use those rights in ways that displease Him.

        And if you don’t believe in God, then evolution/survival of the fittest states that homosexuals are a negative influence on a species so why encourage it?

        1. “And if you don’t believe in God, then evolution/survival of the fittest states that homosexuals are a negative influence on a species so why encourage it?”

          This isn’t even a good parody of the beliefs of someone who understands and acknowledges the truth of modern evolutionary theory.

          But that aside, of what concern is the species to acting man in regards to his choices about particular forms of sexual activity? Is there some secular obligation to procreate that I am unaware of?

          1. If there is a secular concern, it would be for the fittest to survive. Essentially eugenicists would be right if you had no soul or religious values. Basically all “defective” humans would be eliminated.

            It’s like how if the planet was going to explode and we could only choose 300 people to go into space, they’d filter out people with DNA problems (susceptibility to various diseases can be genetic for example). And one of the bigger arguments homosexuals make is that it “isn’t a choice”, but rather DNA. In which case they have problematic DNA. But they have to say that, because they don’t want to admit they have a “choice” (it also overlooks bisexuals/transgenders,etc. unless there is a “bisexual” gene, haha).

      2. And if rights don’t come from God, then rights mean NOTHING and are some irrelevant joke made up by politicians to make people feel “safe”.

        The reality is political “rights” are only safeguarded by force (i.e. guns). Anything else is just what your overlord decides to allow you.

  5. By this time, the justices are probably getting tired of affirmative action. The issue was fresh and exciting in the 1970s at the time of the Bakke case, it stayed relevant in the 80s during the judicial struggles between the Reagan Administration and the civil rights groups, and still had some resonance in the 1990s. But by now it’s gotten boring and annoying. And now that the Court has set a specific deadline in the Grutter case after which AA will probably be struck down, what’s the incentive to go to the mat over this issue?

    But SSM is still new and exciting – it’s the bright shiny thing that all progressive and caring jurists are currently pursuing vigorously in order to enshrine their reputation as Compassionate and Enlightened and Not Bigoted. And it may have more public support than AA. So it’s a bandwagon Kennedy may be more willing to board.

  6. Kinda OT:

    I see Mr. Sterling is planning to fight the NBA. As he is a fabulously wealthy and notoriously ill-tempered trial lawyer, this should be good. Getcher popcorn ready!

  7. I think this is an inapt comparison even if both cases are grounded in due process (not sure what Bo Cara was getting at with that).

    The way Kennedy sees it, Affirmative Action is an OPTION, but is not a requirement under the Equal Protection Clause. Because affirmative action is not required by the equal protection clause, of course people should be allowed to vote on it.

    Gay marriage, by contrast, could well be required under the Equal Protection Clause. If in fact it is, then no, of course voters cannot vote to ban it.

    Permitting voter-driven bans on affirmative action and prohibiting voter-driven bans on gay marriage can be entirely consistent.

    1. Gay marriage cant be required under the EPC, because states do have the option to not license marriage at all.

      1. That makes no sense. States don’t HAVE to do anything.

        But if they do, they must do it consistent with the EPC.

  8. Why is govt involved in marriage at all? Since it is, and since homosexuality is an undeniable fact, state-sanctioned marriages between same sex couples should be a given, just like they are when the couple is male-female. Opposition to this invariably reduces to a religious and/or “I don’t want my kids to see this” argument. Neither is legitimate grounds to deny rights, obviously.

    1. What about polygamy? Its the same given, isnt it?

      The ONLY correct answer is for the state to get out of the marriage licensing game altogether.

      1. Licensing is not the issue. Rather, it’s, is this person that person’s spouse?

      2. Just curious, but how would divorce work if the government got “out of the marriage licensing game”. How could you prove someone was married and how would property be divided?

        Although as a male myself I suppose it benefits me (since women would likely lose their rights to half of a male’s property on divorce) but on the other hand do you really want a society of homosexuals, people marrying animals/computers (like that guy in the news who wants to marry his computer because he prefers porn to the real thing), etc.

        Frankly, marriage should be done by proficient religious authorities but then libertarians don’t want to distinguish between cults and religions so they can’t even allow that.

        If marriage is a right, where does that right come from? From God? Then it makes sense to not use that right in a way that displeases God (i.e. homosexuality, which is banned by all major religions, i.e. Christianity, Islam, Judaism, many sects of Buddhism, etc.)

    2. Opposition to this invariably reduces to a religious and/or “I don’t want my kids to see this” argument.

      Or “I don’t want to give asshole civil rights lawyers another excuse to initiate government force against people and businesses.”

    3. That’s quite a non-sequitur, there’s no logical reason one must connect the practice of homosexuality to the institution of marriage, it might be a nice thing to do, but it doesn’t follow.

      “Opposition to this invariably reduces to a religious and/or “I don’t want my kids to see this” argument. Neither is legitimate grounds to deny rights, obviously.”

      While there is plenty of opposition that doesn’t fit either category, those two are seemingly just as legitimate as any other reason to deny (largely) state-granted rights.

      1. Plenty of opposition outside of a reduction to what I mentioned? Then you can easily come up with a few. Whatta ya got?

        1. See above.

          (Unless you have an extremely broad view of religion)

        2. Simple: the expectation that when a word has been in use in legal documents, that it retain its meaning. Because when the sovereign changes its meaning, as with “dollar”, that’s mischief.

  9. “To say the least, Kennedy has shown little interest in deferring to the democratic process when gay rights are at stake.”

    To say the least, Damon Root has shown absolutely no fucking interest whatsoever in deferring to the democratic process when property rights are at stake. But I guess the “right” of twelve-year-old kids to work 60 hours a week operating a lathe for 10 cents an hour (something my grandfather did) is sacred to him.

    1. Sounds about right, if a person’s property was simply up for vote it’d turn largely useless.

  10. I personally disagree with your conclusion. It was said explicitly in the opinion striking down DOMA that the states have a historical and essential responsibility in defining marriage what way they choose. Yes his voting record is constantly for gay rights, but looking the merits of those cases don’t match the same-sex marriage debate. Let’s look at Lawrence v Texas as example. The Supreme Court voted to invalidate all sodomy laws that criminalized homosexual behavior but only 13 states by that time still had such laws in place in including Texas. With same-sex marriage, there’s still 33 states that ban it (albeit with a number of suits striking some down but on hold). Now a lot of people in the gay rights movement compare this to interracial marriage, but again different circumstances. By the time Loving v Virginia came around, only 16 states at that time still had laws forbidding it. It should also be noted that in Prop 8 oral arguments last year, Kennedy dismissed a similar claim made by Ted Olson saying interracial marriage has existed for hundreds of years in common law countries. Same-sex marriage in comparison is a relatively recent phenomenon.

  11. The fundamental question, not discussed in the courts to date: Why do the “people” have any right to vote on marriage for others? If you don’t like Gay marriage, then don’t have one. How can we allow these bans in a legal system based on limited government?

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