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Parsing Gay Marriage, Affirmative Action And Equal Protection

If gay couples have a right under the federal Constitution to get married, then states cannot take away that right. What we don’t know - yet - is whether such a right actually exists, because the Supreme Court has not ruled on the question.

We do know, however, that racial and ethnic minorities do not have a constitutional right to benefit from affirmative action to promote diversity in education. We know this because of the Supreme Court’s ruling this week in Schuette v. Coalition to Defend Affirmative Action, a much-watched case concerning Michigan’s statewide ban on the use of affirmative action in public university admissions.

The decision does not prevent states from establishing some racial preferences, though the extent of such preferences is limited by earlier Supreme Court precedent. It simply says a state’s voters or lawmakers have the power to prohibit such preferences if they choose, which is the same as saying that those who benefit from racial consideration do not have a constitutionally protected right to benefit from it. Similarly, if the high court were to find that there is no constitutional right for gay couples to marry, it would not mean that states are prohibited from recognizing such marriages, just that they would not be forced to do so.

Justice Anthony Kennedy, who wrote the controlling opinion in the court’s 6-2 decision, took pains to explain that the case was not about the merits of affirmative action programs or the legality of such programs where they are permitted. “This case is not about how the debate about racial preferences should be resolved,” he wrote.

There is an important distinction between the arguments made by marriage-rights supporters and the case put forth in favor of affirmative action. Backers of gay marriage seek equal legal treatment for their domestic relationships, a concept that should easily fit within the logical scheme of the 14th Amendment. Affirmative action backers in Schuette argued that they must be permitted to benefit from unequal treatment in admissions decisions, in order to remedy the presumed real-world effects of minorities’ generations of unequal treatment or to equalize some minorities’ educational and economic disadvantages.

In the real world that actually exists, though, that logic readily breaks down. Race-conscious admissions decisions might favor the children of affluent, highly educated nonwhite parents in the wealthy Detroit suburb of Grosse Pointe, or the offspring of a U.S. president whose father happened to be born in Africa, over the child of a white single mother living in a trailer park in the scuffling community of Dearborn Heights. Michigan voters chose to prohibit such results, while allowing schools to consider the actual circumstances of actual applicants in a manner not based on racial identification.

This approach seems straightforward, though evidently not to the Sixth Circuit Court of Appeals, which had struck down the 2006 Michigan voter initiative by an 8-7 vote on the grounds that banning racial preferences actually violated the Constitution’s equal protection clause. It wasn’t straightforward to those who continued to oppose Michigan’s ban, both locally and nationally, either.

And it was evidently not straightforward to Justices Sonia Sotomayor and Ruth Bader Ginsburg, who were the dissenters in the Schuette decision. We don’t know where Justice Elena Kagan would have come down; she recused herself, presumably because she had worked on the case during her tenure as solicitor general. Justice Stephen Breyer, who usually votes with the court’s liberal wing, joined the five more conservative justices on this outcome, though with his own concurring opinion. Breyer will no doubt be taken to task for his whiteness and maleness in light of his vote in this case.

Sotomayor, who has credited affirmative action with her own advancement in life - a forthright acknowledgment for which she deserves respect - took the odd-sounding position that if Michigan’s public universities are free to consider factors such as alumni legacy or a family’s potential financial donations to the institution in admission decisions, they must be allowed to consider offering race-based preferences, too. But to do that, the schools would be forced to seek an amendment to Michigan’s constitution, because voters have already enacted the constitutional ban on such considerations.

Of course those same voters could conceivably ban alumni preferences, or preferences for rich people. In fact, if preferences favoring the affluent are found to have a deleterious effect on racial minorities (what the Justice Department likes to call a “disparate impact,” though it has thus far avoided testing that theory in front of the high court), such preferences might already be illegal. The Supreme Court did not say Michigan voters could not ban admissions policies that favored factors other than race. It did not say that Michigan voters could not permit race as a factor in admissions decisions, either. It merely said that Michigan voters had the power, under the U.S. Constitution, to ban race-based preferences at public institutions if they chose to do so.

The Supreme Court may yet reverse or limit its precedents, allowing some forms of affirmative action on grounds that any discrimination is, as Chief Justice John Roberts might put it, unconstitutionally discriminatory. The fact that it has not yet done so actually seems to leave open a path by which states might continue to discriminate against gay marriage if they wish. The more emphatically the court declares that “equal treatment” means equal for everyone, the more likely it is that gay marriage will stand and that, eventually, affirmative action will fall.

This may ultimately be where we end up, and I will personally be glad if and when we do. But we are not there yet.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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