Monday, March 25, 2013
Affirmative Action and Same-Sex Marriage
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).
Marty Lederman's response to you:
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.)
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.Post a Comment
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