The Freedom to Marry, Discrimination, and the Courts

Regular readers of this column should recognize hints of Romer v. Evans in the Sixth's Circuit's decision. If you recall, Romer was a 1996 Supreme Court case that declared unconstitutional a Colorado amendment that took away the rights of Coloradans to seek protection against anti-gay discrimination at any level of state government. It was unconstitutional in part because it singled out gay people for this special burden, but also because of the sheer breadth of the political rights taken away. You may also recall that Romer figured prominently in the Ninth Circuit's decision declaring Prop 8 unconstitutional because it took away an important right previously granted to gay persons.

ReinhardtI questioned the Ninth Circuit's reliance on Romer when it decided Perry v. Brown. As I argued here, Judge Reinhardt used Romer to hold that the taking away of the word "marriage" from gay relationships effectuated by Prop 8 constituted an equal protection violation, but in so doing, he emphasized the taking away part of the Romer holding, but de-emphasized the breadth requirement. That is, the reason why Colorado's Amendment 2 was unconstitutional was not simply because it took something away from a discrete minority group, but also because what it did take away was enormous. This is by no means fatal to the Perry analysis: Reinhardt went to great lengths to show how important the word "marriage" is in law and society to suggest that even though all the tangible benefits were left in place, taking away the word marriage and enshrining that discrimination in the state constitution was a gross constitutional evil.

The Sixth Circuit's affirmative action decision buttresses Judge Reinhardt's argument. Breadth was important in Romer, but taking away the right to have racial diversity be a factor in college admissions and force proponents to mount a constitutional campaign as their only recourse may not be as exceedingly broad as taking away the right of gay people to seek all forms of anti-discrimination protection at any level of state government. Perhaps, but there are two problems with that argument.

First, it requires a myopic view of what we consider "broad." In Romer, the breadth of Amendment 2 was based on the levels of government stolen away from gay people and the myriad things everyone else could do at the local, county, and state level and we could not. But, breadth is more meaningful than numbers; large numbers of things are meaningful only if they are important. Affirmative action allows universities to create diverse student bodies, which improve educational opportunities for everyone, enhance non-classroom growth, and exposes all students to real life. It also allows minority students to overcome inherent biases and encumbrances that make success harder at the secondary school level. In this way, affirmative action is just as important to the social fabric of America as the word "marriage."

Second, all these constitutional amendments follow the same pattern: taking away political process rights that allow minorities to use extra-judicial means to realize their rights and equality. In that sense, they are all equally "broad."

There is another reason why Romer and the Michigan case — captioned, Coalition to Defend Affirmative Action v. Regents of the University of Michigan – is relevant to the Prop 8 case and Lambda Legal's several challenges to state constitutional bans on same-sex marriage. The dissenters in this sharply divided court frequently referred to the "popular will of 58%" of Michigan voters and a court's duty not to stand in the way of clear public will. Our victories in Maine, Maryland, Minnesota, and Washington tell us more about the political will of the people over time than any snapshot of one moment. And yet, I have a feeling that when it comes time to rule on the freedom to marry, our anti-gay opponents will do what the dissenters did in Coalition: look at the popular vote and throw up their hands.

But that would be wrong. By holding a popular vote as talismanic and inviolable, a court is shirking its responsibility to be the rearguard protector of rights and justice against the tyranny of the majority. What's more, if the popular will is relevant, a momentary snapshot of it tells us much less than a trend over time. 

Popular opinion has a place in law. As Sandra Day O'Connor said, "Rare indeed is the legal victory that is not a careful byproduct of an emerging social consensus." The key point there is not the cynical view that courts never put themselves out on a limb for the protection of rights; that's simply not true. What is important is that courts follow a trend, an emerging consensus, not a static photo. This is why our recent victories in Maine, Maryland, Minnesota, and Washington were so important, and why our next steps in states like Delaware, New Jersey, Illinois, Oregon, and others have to be taken with the same determination.

Four victories pivoted us away from the narrative created by 2004 — namely, that the American public does not want gay marriage. Today, we are stronger, armed with a better strategy, and supported by a diverse coalition that will show the emerging consensus among Americans that the freedom to marry is part of the good life. Therefore, we need to keep up our fundraising, ground game, and conversations with the moveable middle. If 2012 was the year we won the beachhead, then 2013 and 2014 will be the years we solidify the "emerging consensus" and march toward victory.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.


  1. anon says

    The problem with the reading from the sixth is that there are plenty of constitutional burdens that already exist for any advocacy group, which is why we have constitutions in the first place. It’s a burden for the prayer-in-school crowd, it’s a burden for the right-to-life crowd and for the don’t-burn-the-flag crowd. The only way this gets legs is that state constitutions fall under the reconstruction amendment rulings that guarantee equal treatment under the law (not to mention the bill of rights). However, a proper reading requires the supposition that the 14th requires equal outcomes under the law. For example, a state law school that does not accept the local % of blacks could be shown to be discriminating and therefore must institute policies to guarantee a certain % of blank admittances. So, this is not as simple as it sounds.

  2. AG says

    Affirmative action is the last vestige of institutional racism in this country. Abolishing affirmative action, that is outlawing discrimination based on the skin color is the only fair course of action.

    And now my question to African Americans. Have you no shame benefiting from the color of your skin in college admission and employment? Isn’t it about time for you to stand up and say no to the unjust, racist policies that harm people just like you but with a different skin color?

  3. says

    AG, you don’t yet have the balls to stand up to your own racist and bigoted family as a gay man, so you’re not really in any place to be spouting the nonsense that you’re spouting.

    i get it. you’re angry that there were no scholarships for insecure white homosexuals whose families resent them being gay.

    if you need to hate black people in order to avoid a beating from your right-wing family, by all means, keep trying.

    but it’s very funny that intellectually-dishonest cowards like you pretend to spin it into “benefitting from the colour of your skin” – the entire reason AA is needed is because of the knee-jerk racists like you who hold a person’s ethnicity and cultural background against them.

    feel free to chug a bottle of dran-o.

  4. jakke says

    I’m not against affirmative action (in fact, I think it’s very important), but I would like to know how you can possibly claim that color blind admissions are discriminatory.

  5. Mark says

    I do hope that the freedom to marry doesn’t depend on the upholding of the 6th Circuit’s decision. Given that the 9th Circuit has held otherwise on amendments mandating color-blind admissions, the case is almost certainly heading to the Supreme Court–and it’s hard to imagine Justice Kennedy agreeing with the 6th Circuit’s reasoning.

    It would be most unfortunate, to put it mildly, if the 6th Circuit’s creative interpretation of the Romer standard wound up tarnishing its far more appropriate use in Perry.

  6. david says

    Competitive universities take everything into account including geographic diversity, legacy admissions (whether your parents or other relatives attended the university), etc. With affirmative action bans, the ONLY thing they can’t take into account is race. It actually sounds discriminatory. I also think that competitive universities in the US intentionally limit the number of Asian students from abroad—otherwise many of the best universities would have huge Asian populations–especially in business and engineering schools.

  7. Derrick from Philly says

    “I’m not against affirmative action (in fact, I think it’s very important), but I would like to know how you can possibly claim that color blind admissions are discriminatory”

    Because a significant number of Americans believe that there never have been color blind college admissions or hiring criteria (fire fighters, police, public employees etc.). And as of 2012 some believe that we still can’t guarantee color blindness, or no discrimination based on sex, disability or age or SEXUAL ORIENTATION.

    But it looks like the US Supreme Court is going to tackle the issue this term. Justice Kennedy will be the star (either hero or villain) on this one.

  8. jakke says

    “Because a significant number of Americans believe that there never have been color blind college admissions or hiring criteria”

    That’s not an answer though. A vague set of peoples’ beliefs doesn’t prove that color blind admissions “enshrine discrimination”.

  9. RandySf says

    AG: As a non African-American have you no shame? Do you not get tired of not getting pulled over by the police just because you’re white and driving? Do you not get tired of benefiting from the non-blackness of your skin when you go to get a home loan, a car loan, or when you apply for a school and do a face-to-face interview?

    How shameful of you.

  10. AG says

    I strongly believe that discriminating people based on their skin color is immoral. That’s why I strongly oppose affirmative action. Using “good” racism against “bad” racism is not a good or effective way to eradicate racism. And it’s still immoral.

  11. Rick says

    Twisted logic in this article.

    There is no “right” to a “diverse” student body.

    It IS, however, against Federal law to discriminate on the basis of race, gender, and lots of other characteristics.

    So affirmative action is, in fact, in violation of the law and the only reason it has not been outlawed entirely is because liberal judges have disregarded the actual law and decided cases on the grounds of their own personal political beliefs…..the same way that successive Administrations have disregarded the law against hiring illegal aliens and refused to enforce it.

    Affirmative action exists for one reason: because blacks and to a lesser extent Hispanics are underachieving groups who, with the exceedingly rare individual exception, would not be able to gain admission to top schools on the basis of their own merit. And none of the special efforts that have been made to bring their performance up to that of whites and Asians over the last 40 years has worked…..and no doubt nothing ever will.

    Which is why this country is doomed if they continue to become a larger and larger percentage of the population.

    (And by the way, I am sure the reason Obama refuses to release his college transcripts is that it would reveal that he was a lazy slacker in college and despite having a C average was admitted to Harvard Law School for no other reason than that his father had black skin).

  12. Rick says

    By the way, a big part of the reason that nearly a third of gay white males are dependably Republican in their voting habits has less to do with economic policty than it does with the reality that the Democratic Party is hostile to white males…..and no university or employer is going to give you “credit” for being gay when it comes to reverse discrimination–you just get the same unfair treatment that is accorded to white males who are straight.

    In fact, what happens in the workplace is that being a gay white male subjects you to a “double whammy”–affirmative action penalizes you for your white maleness, but because you are gay and are subject to homophobia (which there is no protection against), you are the most expendable of the white males and usually the one that bears the brunt of the negative effects of affirmative action.

  13. MateoM says

    Oh poo, I thought Rick was not today. Oh well. I guess the pathetic racist, homophobic, femmaphobic, sexist troll can’t get a life.

    Just remember everyone, Rick isn’t actually a gay man. The other day he rambled on and on about how gross and detestable sodomy was. He’s not a gay man, he’s a pathetic anonymous troll. Ignore him.

  14. jpeckjr says

    Colorado’s Amendment 2 specifically prohibited units of government (state and local) from even discussing legislation intended related to discrimination on the basis of sexual orientation.

    That meant that, say, a school board, wanting to add sexual orientation to its nondiscrimination policy regarding, say, high school student organizations, could not even discuss it. If members of the public asked it be discussed, the board would have to dismiss the request: “The state constitution does not permit us to place this matter on our agenda.”

    This provision violated the First Amendment right to petition the government for a redress of grievances. Romer v. Evans relied on other grounds, too, but I remember noting I had never heard of a case relying on the right to petition.

    When Ari speaks of imposing a “special burden” on gay people, it is this burden: how can you advocate for yourself if it is against the law for elected officials to talk with you about your concern? Other groups were not so burdened.

    Amendment 2 supporters argued that “gay rights were special rights,” something other citizens did not have. One of the subtleties of this argument is that gay folks are less than human, so human rights that apply to others do not apply to them. That subtlety continues in the marriage equality argument: same-sex couples are not quite as “fully human” as opposite-sex couples. That is essentially their only argument against us. So when voters say “yes” to marriage equality, they are affirming that gay folks are “fully human.”

    When Romer v. Evans was decided in 1996, I knew it was vitally important to us, and would show up again.

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