Here's a new game. It's called "Name That State!"
The state in question has a constitutional amendment that discriminates against a minority group. The amendment passed with a solid majority, about 58%, back in the 2000s. Though this state has been at the vanguard of protecting this and other minority groups, its citizens nevertheless enshrined discrimination in its constitution. They did so claiming that the constitutional amendment was "fair" and preserved their conception of justice in the world.
Can you guess?
But, I could just as easily be talking about California and its ban on the freedom to marry, or any of the many other states that have constitutional amendments that single out gay people and saddle them with an onerous, discriminatory burden.
The Supreme Court will rule this term on affirmative action in a case called Fisher v. Texas, but a recent en banc decision from the Sixth Circuit Court of Appeals is more apropos to any discussion about gay marriage at the federal courts.
The Sixth Circuit declared Michigan's ban on affirmative action unconstitutional because it puts an undue burden on the political process rights of supporters of diverse admission practices. That is, instead of having to go school to school to argue that minority status should be taken into account, proponents of affirmative action face the daunting task of mounting a constitutional campaign to even make it possible. And, forcing that upon them constitutes a violation of the Equal Protection Clause's guarantee that all people have access to the levers of political change.
There are two ways in which this case is relevant to a discussion of marriage at the Supreme Court. First, it brings to mind the 1996 case of Romer v. Evans, which was at the foundation of the Ninth Circuit's decision in Perry v. Brown (now, Hollingsworth v. Perry) and shows us how to use and analyze that case. Second, it highlights a tricky relationship between political winds and the courts, one that our opponents can misuse when it suits them.
I discuss these implications in greater detail AFTER THE JUMP…
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.
I 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.