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.