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Monday, March 25, 2013

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.                

Comments:

Marty Lederman's response to you:

http://www.volokh.com/2013/03/01/the-supreme-courts-options-in-the-california-same-sex-marriage-case/

People can amend their state constitutions to overturn state rulings when it does not violate the federal constitution.

I don't know how Schuette will affect all of this especially w/o seeing what they do in Fisher. The merits seem to affect their judgment here. For one thing, looser standing requirements tend to be applied in these cases.

If you think Romer was fictional results orientated jurisprudence, I'm sure you can imagine them finding a means to differentiate or ignore. After all, Romer didn't even cite Bowers.
 

I think you misstate the issue in Schuette. The question is whether a pre-existing constitutional use of race-conscious remedies for currently existing racial discrimination can be banned where the ban is itself a product of racial discrimination. This is exactly the Roemer issue. I think this Court is likely to limit Roemer, perhaps as soon as the Prop 8 case, where Judge Reinhardt relied on this logic.
 

Schuette is cleanly distinguishable from Romer and Perry because the Sixth Circuit decision in (what is now known as) Schuette decided on Prop 2 based on the "political process" doctrine alone - a doctrine where the presence of illicit motive (or lack thereof) is irrelevant. So the Sixth Circuit found Prop 2 to violate the EPC without finding that Michigan was motivated by animus or any other impermissible purpose.

This stands in contrast to Romer. There, the Colorado Supreme Court originally found that the state constitutional amendment in question (Amendment 2) violated the EPC through the political process doctrine. However, though Justice Kennedy recognized this in his opinion, he explicitly stated that SCOTUS was going to go a different route in striking down Amendment 2 - and that was through inferring animus.

(Schuette and Romer/Perry may also be distinguishable in the sense that affirmative action is about preferential treatment and gay marriage is about equal treatment, but that's a more controversial point.)
 

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There, the Colorado Supreme Court originally found that the state constitutional amendment in question (Amendment 2) violated the EPC through the political process doctrine. However, though Justice Kennedy recognized this in his opinion, he explicitly stated that SCOTUS was going to go a different route in striking down Amendment 2 - and that was through inferring animus.
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a doctrine where the presence of illicit motive (or lack thereof) is irrelevant. So the Sixth Circuit found Prop 2 to violate the EPC without finding that Michigan was motivated by animus or any other impermissible purpose.

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