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.
But 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.
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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.