Affirmative Action and Same-Sex Marriage

Jason Mazzone

This week, the Supreme Court hears arguments in the marriage cases: one case involves a constitutional challenge to section 3 of DOMA; the other case involves a challenge to California's Proposition 8. There seems to be a growing consensus that in U.S. v. Windsor, section 3 of DOMA will be invalidated (a popular rationale is that DOMA will offend both Justice Kennedy's commitment to federalism and his sympathy to gay rights). Predicting the result in Hollingsworth v. Perry (the Prop 8 case) has produced larger divides. This is because even if there is a majority to invalidate Prop 8, there are at least four options to produce that result: (1) The Court could simply dismiss the case for lack of standing on the part of the petitioners, thereby leaving the district court decision invalidating Prop 8 intact. (2) The Court could go big and issue a 50-state ruling that the Constitution prohibits denying marriage licenses to same-sex couples. (3) The Court could hold that once a state grants all of the benefits of marriage through civil union laws (which a minority of states have now down) the state cannot withhold just the term marriage. (4) The Court could follow Judge Reinhardt's logic in Perry and issue a California-specific ruling: that Romer v. Evans prohibits an amendment to the California constitution to overturn a judicial ruling that the state constitution protects the right of same-sex couples to marry (and that resulted in same-sex marriages being performed in the state).

For reasons I explained at the time, Reinhardt's approach in Perry makes little sense as an application of Romer. What's worse, the idea that the people cannot amend a constitution in response to a judicial interpretation is a basic affront to constitutional democracy. This doesn't mean, of course, that the Supreme Court won't take a Romeresque approach in Perry (especially if the other options do not attract five votes).

But a development at the Court today casts significant doubt on a Reinhardt/Romer resolution on the Prop 8 question in Perry.


The Court today granted review in Schuette v. Coalition to Defend Affirmative Action. That's the case in which the Sixth Circuit (en banc) held that Proposal 2, an amendment to the Michigan constitution adopted in the wake of Grutter v. Bollinger to prohibit state universities (as a matter of state law) from considering race in evaluating applicants for admission, violates the federal Equal Protection Clause. In a decision with strong echoes of Romer, the Sixth Circuit reasoned that Proposal 2 impermissibly burdens the political rights of minority voters, who must now first amend the state constitution before they can obtain through the ordinary political process a reinstatement of affirmative action measures.

When the justices think about Prop 8 in Perry, they will inevitably be thinking also about Proposal 2 in Schuette. And a Court whose majority is deeply skeptical of affirmative action measures to begin with (see the recent oral argument in Fisher v. University of Texas) is very unlikely to endorse the Sixth Circuit's Romeresque ruling that, in essence, not only is affirmative action permissible under Grutter, it is required whether the people of a state want it or not. And if you think what matters is the vote of Justice Kennedy (who authored Romer), he has never voted to uphold a race-based affirmative action program.

Perhaps Prop 8 can be distinguished from Proposal 2. But today's grant in Schutte might well take the Reinhardt/Romer approach in Perry off the table.                
Posted 5:03 PM by Jason Mazzone [link]