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

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.


Comments

  1. candideinnc says

    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?

  2. ratbastard says

    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?

  3. Nathan says

    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

  4. Anthony says

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

  5. Kevin_BGFH says

    @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).

  6. David Hearne says

    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.

  7. David Hearne says

    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.

  8. mike/ says

    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?

  9. anon says

    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).

  10. Gerry says

    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.

  11. says

    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.

  12. Mike B. says

    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).

  13. Anony6 says

    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.

  14. Sean says

    “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?

  15. sean says

    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.”

  16. Rich says

    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.

  17. Kyle says

    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.

  18. Derrick from Philly says

    @ “….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.

  19. says

    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.

  20. Matt N says

    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.

  21. MiddleoftheRoader says

    It is really stretching to say there is a connection between the affirmative action case and the same-sex marriage cases in terms of the legal principles at issue. However, what is significant about the affirmative action case is that 2 of the liberal Justices (Breyer and Sotomayor)joined Justice Kennedy at the same time that Chief Justice Roberts and Justice Alito also joined. Justices Breyer and Sotomayor could just as easily written their own, separate opinions as Justices Scalia and Thomas did. So does it mean anything that Justices Breyer and Sotomayor “supported” Justice Kennedy’s reasoning?

    I hope the answer is “yes”. While Justices don’t “trade votes” on different cases, the willingness of the liberals to join in Justice Kennedy’s opinion may be some evidence that he was willing to stick with them (or they were willing to stick with him) on the same-sex marriage cases. We shall see within 48 hours.

  22. sean says

    I really wish these issues were kept separate. It’s really annoying to keep grouping things like illegal immigration and reverse discrimination along with marriage equality.

    Marriage is marriage. We, legal citizens, should be able to get that addressed first without dragging those other issues into the mix.

  23. Thurts says

    I find it interesting when people who are not black want to discuss how we have caught up. You cannot equate 40 years of progress with over 400 years of suppression. There is still a lot of work to do regarding racial inequality in our society and the LGBT community as well. Heterosexuals can say the same thing about us because they have heterosexual privilege and do not experience discrimination on a daily basis regarding their sexual orientation. I mean we can get married in 12 states and all of these politicians are fawning over us right now, so in their eyes we have made it, so stop being so greedy and asking for equality. The same goes for those who are non-black and have privilege. Until you can acknowledge, that you benefit from this privilege and are open to discussing the remedies for this privilege than the conversation is mute.

  24. ProfK says

    As you acknowledge, the Court did not change the law today. It merely reiterated the strict scrutiny standard that it announced must be applied to racial affirmative action plans many years ago. Indeed, the court also affirmed that diversity in higher education remains a sufficiently compelling reason to permit narrowly tailored affirmative action programs. This is a partial victory for supporters of affirmative action so to my view it is really a matter of the glass half empty or half full. Similarly, an equal protection analysis of DOMA or gay marriage bans must look BOTH at the goal of the classification AND at the means used to achieve that goal. Even under a lower standard of review (which quite definitely the court will use since it has reserved strict scrutiny for race cases, using intermediate scrutiny for gender cases and mere rational basis review for all other classifications, such as religion, even though these other groups also have a history of discrimination), it is not at all clear that the government’s stated goals for section three of DOMA or the CA marriage ban would hold up. So I actually think that the decision bodes well for the gay marriage decisions, which are less about the rational connection of the means to the goal, and more about the legitimacy of the goals themselves.

  25. ProfK says

    As you acknowledge, the Court did not change the law today. It merely reiterated the strict scrutiny standard that it announced must be applied to racial affirmative action plans many years ago. Indeed, the court also affirmed that diversity in higher education remains a sufficiently compelling reason to permit narrowly tailored affirmative action programs. This is a partial victory for supporters of affirmative action so to my view it is really a matter of the glass half empty or half full. Similarly, an equal protection analysis of DOMA or gay marriage bans must look BOTH at the goal of the classification AND at the means used to achieve that goal. Even under a lower standard of review (which quite definitely the court will use since it has reserved strict scrutiny for race cases, using intermediate scrutiny for gender cases and mere rational basis review for all other classifications, such as religion, even though these other groups also have a history of discrimination), it is not at all clear that the government’s stated goals for section three of DOMA or the CA marriage ban would hold up. So I actually think that the decision bodes well for the gay marriage decisions, which are less about the rational connection of the means to the goal, and more about the legitimacy of the goals themselves.

  26. sean says

    “You cannot equate 40 years of progress with over 400 years of suppression.”

    Ummm….the US is only 237 years old.

  27. MrRoboto says

    “Ummm….the US is only 237 years old.”

    News flash: the enslavement of Africans by Americans didn’t start the day after the Declaration of Independence was signed.

  28. Factoids says

    Its also misleading to pretend class in the U.S. isn’t mingled with race. If this were Europe, such arguments may make more sense. But, its the classic shell game. Look over here. The problem with looking over there is that its a con. It doesn’t mean class doesn’t matter. It means that its simple minded to pretend its not connected to race. I am all for saying that lower income people of color should be given an advantage over others, but I’m not interested in pretending race doesn’t play a role in class in America. When you look at the current data (not in historic) you can see this in hiring practice, wages and many other economic indicators. There’s a race gap with class issues. Just as theirs an economic gap for LGBT issues or gender issues. This pretense that they are easily separable is b.s.

  29. Rob says

    Legacy legacy legacy. The Supremes care about their legacy, and how the “Roberts court” (gag) will be viewed.

    And I agree Mitt Romney is a fine looking man. Evil, but dayum.

  30. Alex says

    I’m Hispanic and think affirmative action is ridiculous. It hurts hard working people from my family who wake up early to go to school and get good grades but rewards someone who has less GPA but has the right skin colors. Stupid.

  31. JohnAGJ says

    @Thurts – so essentially you are arguing that to combat discrimination we must engage in discrimination under the law? We must discriminate against persons because of their race to fight racism? Sounds akin to a bill of attainder that targets folks not guilty of any crime but simply because of what group they may be classified into regardless even of whether they are descended from the offending group or not. These leads to not only perpetuating discrimination, just in different guise, but to absurd levels where Asian students are denied opportunities because of some racial quota. I’m not aware of Asian-Americans having a history of salve owning in this country.

    Nothing will completely and fairly undo the period of slavery in our history. Nothing. It happened, people were unjustly treated and suffered. It’s not a history unique or unheard of throughout time. The best we can do is make the laws as fair as possible to treat people the same regardless of race. So if a person of a different race or ethnicity beats me out of getting a job or spot in a university because they have a better resume, more power to them. If its done because they are being specially favored because of their race or ethnicity, that’s an entirely different matter. Now if we want to talk about socio-economic factors that might be given some help under the law, I’m okay with that even if a large portion of some race or ethnicity might fall under that because those factors impact every group.

  32. JohnAGJ says

    MrRoboto – except there weren’t any “Americans” 400 years ago and those slaves brought by Englishmen to Jamestown were bought from the Dutch who in turn bought those poor souls from other Africans. It was only later that European slavers decided to cut out the middle man and seize Africans to be sold for slavery on their own. Rather a despicable time any way you look at it, but not unique in human history.

  33. Jude says

    I see it all a little differently. Despite the feelings of some, there is no limiting of opportunity with this decision. One has to assume there is ongoing discrimination against non-whites — I come from a family ensconced in academia, and have concluded most schools do want diversity, but they primarily want good students. What we’ve actually seen is discrimination against white students. Therefore, setting a course for the elimination of AA suggests more equality in the end.

    Today, many people believe anything earned by black students was a free pass by schools. In some cases that is true. But for those who earned their academic success, it is an unconscionable blow to them and trails them for the rest of their lives. It is unforgivable. Think of what people say about Pres. Obama.

    I agree with ratbastard — a child’s likelihood of academic success is socioeconomic, not racial. Until we realize that and pass that empowering message on to impoverished minorities, we’ll never advance. You CAN do your homework. you CAN’T change your race. Which message would you rather hear?

    As for DOMA & Prop 8, they are both legislated inequality and I believe will be struck down.