Ari Ezra Waldman | DOMA | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

The Importance of the SCOTUS Affirmative Action Decision and Its Implications for Gay Rights


200px-Large_university-of-texas_seal_rgb(199-91-18)Already, Politico and Slate are calling today's Supreme Court decision today on the University of Texas's race-based affirmative action plan a "compromise" or a "punt." Not so. Sure, the Court did not issue an explicit holding on the constitutionality of university admission programs that take race into account; but the Court did make clear that any race-based classification must meet strict scrutiny, with little deference to the university. In short, even though the justices in the majority did not decide the fate of the U Texas program today, they just made it a lot harder for any university race-based affirmative action plan to survive.

And because the decision was 7-1 (with Justice Kagan recused), it also gaves us a hint to the Court's thinking as it approaches Prop 8 and DOMA: equality is not what it used to mean.

Fisher v. University of Texas challenges UT's admission decision process, which takes into account an applicant's race. The Court had held long ago, in a series of decisions starting in 1978, that race-based affirmative action plans demand strict scrutiny. The Court affirmed that idea in more recent decisions in 2003. But it waited until today to show just how serious it is.

Under the Court's precedents, strict scrutiny -- the toughest form of scrutiny that lets few laws pass constitutional muster -- must be applied to any admission program based on race. Universities only get deference to their considered judgment that "such diversity is essential to its educational mission," or, that racial diversity is good for teaching and good for the school environment. But, once a court accepts the university's rational and detailed explanation for the need for racial diversity, the university's deference disappears: it must show that the means to reach that diversity is "narrowly tailored" to achieve the goal.

That is strict scrutiny 101, but the Court's clear statement in this case is notable for two reasons. First, it shows how seriously the Court is taking the strict scrutiny requirements when it comes to race-based classifications. Second, in the Fisher context specifically, where affirmative action opponents have argued that socioeconomic diversity could achieve the same diversity goals without race-based classifications, the Court is making clear its strong disfavor for racial distinctions under the law.

It also tells us something about the gay rights decisions. The Court majority takes its scrutiny levels very seriously. Justice Ginsburg's dissenting opinion, in which she noted how little race is taken into account, fell on deaf ears. So, this was a case with a tiny racial classification, and a large majority on the Court used it as a chance to say it means business.


You would think that would mean that the Court would take classifications on the basis of sexual orientation just as seriously when it came to DOMA and Prop 8. Not so. First, race is different than sexual orientation. Race was listed in the original Supreme Court decision that first gave strict scrutiny to certain odious discriminations; sexual orientation was not.

SupremesBut more importantly, the Court is weaving a narrative about what "equality" means under its watch. The thousands of words just to send the Fisher case back to the Fifth Circuit made clear that the Court is not inclined to find that making up for past discrimination is a legitimate goal or a compelling path to passing strict scrutiny: It doesn't matter what schools used to do in the past; diversity can be achieved in many ways. This was the same objection the Court's conservatives brought up during their hostile questions about the Voting Rights Act a few months ago. If you recall, the issue in this other highly anticipated case is the fate of a provision of the Act that requires certain state apportionment plans to be approved by the DOJ because of those jurisdictions' histories discriminating against African Americans. Conservatives have little sympathy for this law partly because they see it as a gross violation of local and state rights in the name of punishing today's citizens for the sins of their fathers.

And yet a history of discrimination is a key factor in determining if any group -- including the LGBT community -- will get heightened scrutiny applied to instances of official discrimination. In Fisher, the Court is hinting that it is tossing aside the past and remaining blind to the very real lingering effects of decades of institutional discrimination. We should be concerned that this willful blindness will be one weapon the Court's conservatives use to deny us heightened scrutiny for anti-gay discrimination.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York 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. Ari writes weekly posts on law and various LGBT issues.

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  1. Thank you for the article.

    Although now I'm terribly depressed.

    Posted by: Polyboy | Jun 24, 2013 12:18:33 PM

  2. Can you explain the reason, then, that three so-called liberal justices went along with turning back a tradition of concern for righting the wrongs of institutionalized discrimination?

    Posted by: candideinnc | Jun 24, 2013 12:20:29 PM

  3. RE: Affirmative Action, i.e. legal race-based preferential consideration; they've been in-place in America for over 40 years. In most of academia, they've been in place since the 70s. It not just race-based preferential consideration, but gender-based. So-called 'quotas' are now illegal, but they've simply changed the wording to 'benchmarks'. How long does the officially sanctioned 'victim' status continue?

    IMO, in regards to to race, gender, ethnicity, sexual orientation, only one of these demographics is actively and legitimately discriminated against in 2013: sexual orientation, i.e. homosexuals. The other 'victims' have actually had laws in place for about a half century now that legally discriminate IN THEIR FAVOR.

    And when is America going to seriously discuss the real issue; socio-economics, not 'race' or 'ethnicity', nor gender. If you look closely at who gets into the top league schools, you'll discover that regardless of their 'color', gender, etc., they pretty much all come from comfortable middle and upper middle class backgrounds and had all the privileges that go along with it. I RARELY....EXTREMELY RARELY, here Democratic party 'progressives' put socioeconomic-based issues ahead of 'race' and gender. Often, socioeconomic isn't mentioned at all, or as an after thought. Why is that?

    Posted by: ratbastard | Jun 24, 2013 12:23:33 PM

  4. CORRECTION: Should read HEAR, not 'here'.

    Posted by: ratbastard | Jun 24, 2013 12:25:13 PM

  5. candide-easy answer-the minorities have had plenty of time to catch up with the help-and teh SC judges see that pretty clearly-now there is no reason to let the color of your skin determine advantages-they need longe rthan 40 years??-especially in school-we should reward the best and brightest-period

    Posted by: Nathan | Jun 24, 2013 12:31:06 PM

  6. Just saying, these cases probably have no relation to one another. Wait for the decisions to come out. I'm sick of this speculation.

    Posted by: Anthony | Jun 24, 2013 12:32:39 PM

  7. @candideinnc - To clarify, only two of the liberals, Breyer and Sotomoyer, sided with the majority. Ginsberg dissented and Kagan recused herself because she had some prior association with the case (presumably as Obama's Solicitor General).

    Posted by: Kevin_BGFH | Jun 24, 2013 12:37:39 PM

  8. As always, the Mongoloid people are the rationality check on Affirmative Action. Many California schools are majority nonwhite and Affirmative Action doesn't have anything to do with it. The Asians have clearly distinguished themselves as a group in academics.

    Maybe if little black kids had parents who say "do your homework and practice your violin" instead of, "better get your uniform on, you have football practice tonight" then we would see more black people being legitimately deserving of spots at top schools and average schools alike.

    Posted by: David Hearne | Jun 24, 2013 12:42:40 PM

  9. Then again, when I was a little white kid the only thing I heard my white parents say was "you better not ever turn into one of those liberal gays who think that they can stand up for equal rights, and be respected. You may be gay, but you're a conservative, and you better remember that or we'll cut you out of the will."

    I mean, my parents won't even let me act on my same-sex attractions. The only thing I'm allowed to do is masturbate to images of Mitt Romney.

    Posted by: David Hearne | Jun 24, 2013 12:47:57 PM

  10. after reading the Syllabus & now your article, am i seeing that the Court is really saying that the Constitution does NOT support or guarantee equality of any kind at its root?

    if so, to make a seemingly ridiculous parallel, how is that different from the ongoing NSA controversy? anyone can be watched & scrutinized for any reason?

    are some people more equal than others still?

    Posted by: mike/ | Jun 24, 2013 12:58:17 PM

  11. Well, it's simpler than that. Affirmative action cases violate the 1st amendment "freedom of association" and are dubious remedies under the 14th amendment equal protection clause. A remedy is a ruling by the court to address the injustice of the crime or tort and therefore is not bound by the "due process" clauses of the constitution because they come after "due process".

    Not particularly relevant to gay rights because there are no gay rights affirmative action cases before the court. Most commentators will note that Kennedy is writing this split down the middle ruling, which might mean he won't be writing the DOMA or Prop 8 rulings (a big surprise).

    Posted by: anon | Jun 24, 2013 12:59:41 PM

  12. Well, we can dance around this with fancy language all day, but it all boils down to this...
    Does SCOTUS believe that sexual orientation is immutable? If so, they can come to no other conclusion than to support marriage equality and strict scrutiny. This decision doesn't affect that reality. I still believe that the decision will be handed down on Wednesday (the 10th anniversary of the Lawrence decision) and that it will be equality for all.

    Posted by: Gerry | Jun 24, 2013 1:11:30 PM

  13. Oh come on. This is the worse article I've read from you Ari. You are making BOGUS assumptions.

    Gay marriage WAY out of left field compare to affirmative action. These two issues are apples and oranges. The court is saying that in the affirmative action case you cannot use the past to justify reverse discrimination. They are hinting on making the state offer up a clear valid state interest in reverse discrimination based race BESIDES past discrimination. Conservatives HATE it when they are punished for the actions of their fathers.

    In gay marriage, however, we are not trying to FORCE the state to have specific quotas of gay marriages to straight marriages or demanding reparations for discrimination of the past. We are dealing with two cases in which the state has pretty much agreed with the plaintiffs. We have cases that are dealing with the present and in DOMA we are pitting the conservatives against their own dogma on 'state rights.'

    In the end we DO NOT know how the court will rule and trying to read the minds of the Justices based on a whole DIFFERENT case law is really stupid and laughable.

    Posted by: Jose Soto | Jun 24, 2013 1:14:10 PM

  14. It's not "way out of left field" at all. In Supreme Court jurisprudence, both race and sex are evaluated under equal protection clauses of the 5th and 14th Amendments, and therefore, the "scrutiny" levels are relevant here.

    You might not agree with the analysis, but I think it's inaccurate to say the topics are unrelated. They are, from a legal sense. At least based on the what the Court itself writes.

    From a Crit's point of view (or perhaps just a more cynical point of view), the Justices will do whatever motivates their own interest politically. Which means fingers crossed on Kennedy (and maybe even Roberts).

    Posted by: Mike B. | Jun 24, 2013 1:43:07 PM

  15. Good article.

    I do not agree with those who say it is baseless for Ari to read into the affirmative action decision when speculating on the marriage equality outcome. My understanding of what Ari was underlining, was how there has been a shift by the court on what criteria is prioritized and considered when assigning heightened scrutiny.

    If historical discrimination is now less important, then it now becomes harder to apply heightened scrutiny to lgbt cases. Historical discrimination is an important consideration since sexual orientation and gender identity are currently not protected classes.

    Posted by: Anony6 | Jun 24, 2013 2:16:21 PM

  16. "As always, the Mongoloid people are the rationality check on Affirmative Action. Many California schools are majority nonwhite and Affirmative Action doesn't have anything to do with it."

    Er... The "Mongoloid" people? What century are you living in?

    Posted by: Sean | Jun 24, 2013 2:25:19 PM

  17. It's 2013. It's time to STOP using race as a factor in admissions. It's unfair that certain groups lose spots at top schools to underperforming groups. Qualified asians and whites are losing spots to less qualified blacks and latinos, simply in the name of "diversity."

    Posted by: sean | Jun 24, 2013 2:56:31 PM

  18. ^^20th Century, circa 1950s.^^

    Posted by: Jared | Jun 24, 2013 3:04:21 PM

  19. "mongoloid people?" who says that in 2013?

    Posted by: Kyle | Jun 24, 2013 3:15:30 PM

  20. My takeaway from this decision is that SCOTUS is (as Ari avers) very serious about heightened scrutiny, and that heightened scrutiny is double-edged, applying to both laws designed (or having the effect of) oppressing a protected class and to remedies enacted for ameliorating that oppression.

    The California Supreme Court has declared LGBT folk to be a protected class. The points remaining speculative are whether SCOTUS agrees and if so what it will do with that heightened scrutiny.

    Posted by: Rich | Jun 24, 2013 3:29:31 PM

  21. I don't think there was any real chance that gays would get official heightened scrutiny from this Court, although many legal scholars have argues that the Court has de facto given LGB Americans heightened scrutiny through a type of rigorous rational basis review found in Romer and Lawrence. Kennedy certainly has applied a muscular rational basis scrutiny to antigay laws that have effectively been the equivalent of intermediate scrutiny analysis. Whether he continues to do so is the question at issue now.

    Posted by: Kyle | Jun 24, 2013 3:33:30 PM

  22. @ "....the Mongoloid people..."

    Yep, he talks that way. The irony, Sean, is that you and that wretched old b.tch share the same politics.

    He claims he respects Asians. I wish one would shove a Samurai sword up his azz.

    Posted by: Derrick from Philly | Jun 24, 2013 3:59:53 PM

  23. Sorry, but again, affirmative action deals with reverse discrimination and the gay marriage cases DO NOT.

    Gay marriage can be viewed through the heightened scrutiny lens just like the AA case. BUT we're are dealing with a whole different set of FACTS here. One being that if the state can *discriminate* based on race to fulfill some form of vengeance against whites and other being that the state can discriminate based on gender (or sexual orientation) to fulfill some homophobic nirvana.

    Equality is not just a blanket that can be tossed around at everything. Certain circumstances require different takes and outcomes. For this reason I dissent from Ari on that basis alone. He's entitled to think that AA decision may influence the gay marriage ones, but I would like to see his face when in fact he might be proven wrong.

    Posted by: Jose Soto | Jun 24, 2013 4:07:42 PM

  24. I would come to the opposite conclusion of this article. In this case, Kennedy seems to be adhering strictly (no pun intended) to what heightened scrutiny means. Hopefully that means he will take the court's 'litmus' test seriously and concluded that sexual orientation is a protected characteristic.

    The only reason you would read this decision as being bad for gay rights is if you think that the judges will view allowing gay couples to marry as some kind of 'compensation' for past discrimination rather than simply putting such couples on an equal footing with straight couples.

    That seems like a bit of stretch. I think anyone would agree that affirmative action is a temporary measure that should end at some point. I highly doubt same-sex marriage is seen in the same light.. that it's a temporary incentive to wrong past discrimination against gay people.

    So, yes, I don't agree at all with the conclusion of this article.

    Posted by: Matt N | Jun 24, 2013 4:25:25 PM

  25. @ Matt N Interesting.

    Posted by: Tim | Jun 24, 2013 4:33:52 PM

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