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Affirmative action ruling adds new twist to same-sex marriage challenges

Affirmative action ruling adds new twist to same-sex marriage challenges

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Kevin Coyne of Washington holds flags Wednesday in front of the U.S. Supreme Court in Washington. The high court, in the second day of gay marriage cases, turned Wednesday to a constitutional challenge to the federal law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. (AP Photo/Carolyn Kaster)
Kevin Coyne of Washington holds flags recently in front of the U.S. Supreme Court in Washington. (AP Photo/Carolyn Kaster)

The recent U.S. Supreme Court ruling upholding a state law barring the consideration of race in public university admission decisions is having an immediate effect on a set of closely watched appeals involving an entirely different issue: the constitutionality of state same-sex marriage bans.

In Schuette v. BAMN, the Supreme Court upheld a Michigan constitutional amendment that prohibits the use of race-based preferences in the admissions process at state universities, ruling that the issue was properly within the authority of voters to decide on.

“Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach,” Justice Anthony Kennedy wrote for the plurality. “Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

That rationale has now become a focal point in legal challenges to state constitutional amendments barring same-sex marriage that are pending before several U.S. Circuit Courts of Appeals.

Proponents of the amendments have filed supplemental briefings citing Kennedy’s opinion, which states among other things that “the courts may not disempower the voters from choosing which path to follow.” They argue that this means the federal courts should leave it to the voters to decide on the rules of marriage.

“I think it’s a potential game changer,” said Jordan Lorence, senior counsel in the Washington office of Alliance Defending Freedom, which represents officials in Oklahoma and Virginia defending same-sex marriage bans. “I think we will get a clearer picture [of the argument’s persuasiveness] once one of these marriage cases gets up to the U.S. Supreme Court.”

Opponents of same-sex marriage bans are downplaying the potential significance of Schuette, saying that Supreme Court precedent makes clear that fundamental rights such as the ability to marry cannot be left to the judgment of popular opinion.

“The Supreme Court has said many times that constitutional rights may not be submitted to a vote,” said Robert Sedler, a professor at Wayne State University Law School in Detroit and a consultant to the legal team representing challengers to Michigan’s same-sex marriage ban. “Constitutional rights depend on the outcome of no election.”

“I don’t think it’s a game changer, and I’m not even sure it’s a persuasive argument,” said Carl Tobias, a professor at the University of Richmond School of Law.

“Affirmative action is very different from marriage equality, and the jurisprudence is different. … I’m not sure that the court, or even Kennedy himself, will decide [a same-sex marriage case] based on the language that he used in Schuette,” he said.

Letting the voters decide

Within days of the Schuette decision, parties defending state same-sex marriage bans in Virginia, Michigan and Oklahoma filed supplemental briefings citing the case and arguing that the definition of marriage should be left to state voters, just like the issue of using race in university admissions.

In the challenge to the Virginia law pending at the 4th U.S. Circuit Court of Appeals, a brief submitted on behalf of the defendant, Court Clerk George Schaefer III, quotes directly from key passages of the Schuette opinion.

“As with the choice to use or not to use race as a consideration for admission into a university, the choice to allow or not to allow same-sex marriage is the subject of active and vigorous debate across the country. … Taking difficult policy questions away from the electorate and out of the democratic process ‘is inconsistent with the underlying premises of a responsible, functioning democracy,”” argues the legal team led by David Oakley, a shareholder in the Chesapeake, Virginia office of Poole Mahoney PC. Arguments in the case will take place before a 4th Circuit panel this week.

In the 6th Circuit case involving Michigan’s voter-approved marriage amendment, Attorney General Bill Schuette cited the affirmative action ruling that bears his name in a brief arguing that “our system of democracy is based on the premise that the people are capable of deciding even sensitive issues on ‘decent and rational grounds.’”

“As the Supreme Court has also recognized (repeatedly), this particular issue — marriage — is an issue left to the people at the state level,” Schuette’s brief states. “This local control affords greater liberty to more people, as different States could choose to adopt different marriage definitions.”

Filings were also made by parties in a 10th Circuit case involving Oklahoma’s voter-approved same-sex marriage ban.

“Schuette supports Smith’s argument that the People should be free to decide difficult policy questions through the political process,” stated a joint letter sent to the 10th Circuit’s clerk’s office by Alliance Defending Freedom attorneys and Tulsa County, Oklahoma Assistant District Attorney John David Luton.

Watching Kennedy closely

Lorence said the marriage law challenges making their way through the circuits could change the perception “that same-sex marriage was inevitable,” a view that he said has prevailed since the Supreme Court ruling last year in U.S. v. Windsor striking down a law barring recognition of same-sex marriage for federal purposes.

“Federal district courts striking down the amendments have fallen in line behind that narrative and that view that existed after Windsor,” Lorence said. “The Schuette case should cause people to reexamine Windsor.”

The cases also put Kennedy, who has long had a reputation as the potential “swing vote” in closely-divided cases, in the spotlight.

In addition to writing the voter choice language in the Schuette v. BAMN opinion, Kennedy is the author of the court’s 1995 opinion in Romer v. Evans, which struck down a voter-imposed Colorado law that barred any judicial or governmental action granting anti-discrimination rights based on “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”

That law, the court held, violated the Equal Protection clause by singling out gay and bisexual people.

Kennedy also authored the Windsor ruling striking down the Defense of Marriage Act, reasoning that a “desire to harm a politically unpopular group” cannot justify disparate treatment of that group, but also stressing states’ rights to make rules defining and regulating marriage.

Sedler said the marriage cases offer a key distinction from the reasoning in Schuette. While a ban on race-based admission decisions is not designed to deny anyone rights, same sex marriage bans are, he said.

“No one is questioning the state’s ability to regulate marriage,” Sedler said. “This is about denying a couple the ability to marry, which causes enormous legal and financial and social harm. That is an equal protection violation.”


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