Between now and the end of June, the Supreme Court will rule on the constitutionality of both same-sex marriage and affirmative action. Both issues implicate the Equal Protection Clause of the Fourteenth Amendment, prohibiting the states (and the federal government through incorporation of the Fifth Amendment), from denying any "person" the "equal protection of the laws." The reasons why the Court should rule that the states and federal government have a constitutional obligation to recognize same-sex marriage shed light on why the Court must allow the states and the federal government to use affirmative action if they so desire.
The female partners in the Proposition 8 case wish to be treated the same as all other heterosexual couples. The plaintiff in United States v. Windsor lost over $300,000 because the federal Defense of Marriage Act (DOMA) defines marriage as between a man and a woman for all federal purposes, including the estate tax. All of these plaintiffs are "persons" within the meaning of the Equal Protection Clause, and they have all been denied important government benefits and/or status, and no one seriously argues otherwise. The only defense that opponents of same-sex marriage make is that the institution of marriage must be reserved for heterosexual couples for reasons having to do with children, procreation, or to maintain the traditional institution of family in a way that is centuries old.
We allow heterosexual couples to marry whether or not they want to have children or are even capable of having children. We allow heterosexual couples to marry whether or not they intend to procreate or even are able to procreate. The institution of marriage has never, in US history, been reserved for people having children, and millions of heterosexual marriages are devoid of children. To suggest that the government encourages couples through financial inducements and other privileges to marry so that they can have children is a frivolous claim.
Ms. Windsor should not be denied over $300,000 because she never had children or never intended to procreate. Moreover, millions of same sex couples do have children through adoption, artificial insemination, or other means, and thus are similarly situated to heterosexual couples in that regard. The Equal Protection Clause does not allow the government to disqualify an entire class people from important benefits because of such fanciful claims.
The argument that same-sex couples cannot marry in order to preserve the traditional idea of marriage is equally devoid of logic or law. Other "traditional" ideas used to be that public schools and the military needed to be segregated by race, that teacher-led prayer in public schools was necessary, and that children in those schools had to recite the pledge of allegiance even if they didn't want to. Those "traditions" have gone by the wayside because they were deemed by the Court to be unconstitutional and so should the bans on same-sex marriage.
Moreover, even if the traditional idea of marriage is built upon notions of promised monogamy and the family unit being a stable part of a well-functioning society, gay monogamous couples serve those purposes just as well as heterosexual partnerships.
What these cases really come down to is a moral judgment that society should not encourage gays to marry and should not bestow on gays the benefits of marriage because some people in the US disapprove of homosexual conduct. The Supreme Court, however, has already held on at least three different occasions (two of which involved gay rights), that mere disapproval or animus (in legal language) is not a sufficient enough interest to justify denying people the equal protection of the law. In fact, when animus is at work, as Justice Kennedy once wrote in Romer v. Evans a gay rights case, there is "a denial of equal protection of the laws in the most literal sense." The Supreme Court (jurisdictional issues aside) should rule in favor of the plaintiffs in both the Proposition 8 and the Windsor cases.
Now compare the affirmative action complaint of Abigail Fisher who claims she was denied the equal protection of the laws when she was refused admission to the University of Texas. The University, like thousands of others across the country, uses race as one factor to determine how to build its in-coming class. The major factor the university uses is high school grade point average which accounts for seventy-five percent of its class and is race neutral. Other factors include SAT scores, extra-curricular activities, written essays, alumni status, special circumstances and race. Of course alumni status is a racial factor given the many years only whites were allowed in to the university, and no one claims it is an unconstitutional factor. The issue before the Court, however, is whether colleges that use race overtly among many other criteria in their admissions process violate the equal protection rights of white applicants like Abigail Fisher.
The college does not disqualify all whites from admission nor does it have a rigid quota for minority students or non-whites. Unlike the same-sex marriage cases, the University of Texas does not disqualify an entire identifiable group of people from a benefit it hands out. In fact, the University of Texas is approximately fifty percent white according to enrollment information. So the first important difference between the cases is that Abigail Fisher was not denied admission because she was white but because her entire application when compared with the thousands of other applications was deemed by Texas officials to not add as much to the class as the admitted applicants. No such balancing happens with DOMA or Proposition 8.
Although the government is not allowed to adopt racial classifications absent a compelling interest, the University of Texas has done no such thing. Its use of race as one factor among many to decide what kind of class to admit no more creates a racially based admissions process than the use of athletic ability as one factor converts the process into an athletic based admissions system.
The interests put forth by the University to use race as one factor in its admissions process are far weightier than the animus based interests at the heart of the arguments against same-sex marriage. For many years the University of Texas accepted only whites and now it wants to make sure that its entering class mirrors the society its students are being prepared to enter. In addition, teaching a class with students from diverse backgrounds makes for a much better educational experience for all the students (including the white ones) than teaching a predominantly all white class. As Justice O'Connor noted in Grutter v. Bollinger, the Court's last affirmative action case dealing with higher education, private industry, the military, and other educational institutions all benefit when people of color graduate from our elite colleges and universities.
The same-sex marriage cases involve the governments (both state and federal) denying an entire and identifiable group of people important benefits based solely on their membership in a disfavored class. The Fisher case involves a public school trying to admit the best and most diverse class it can by using race as one factor among many to dole out the privilege of attendance at the state's flagship school. DOMA and Proposition 8 discriminate against gays and lesbians for no good reason while the University of Texas is trying to alleviate the harmful effects of centuries of formal and overt discrimination and graduate a richly diverse student body. The Court should rectify the former and leave the latter alone.
Eric Segall is Professor of Law at the Georgia State University College of Law in Atlanta, GA. He teaches federal courts and constitutional law, and has served on the Executive Committee of the Association of American of Law Schools (AALS). He is the author of the book Supreme Court Myths: Why the Supreme Court is not a Court and its Justices are not Judges.
Suggested citation: Eric Segall, What the Same-Sex Marriage Cases Teach Us About Affirmative Action, JURIST - Forum, May 30, 2013, http://jurist.org/forum/2013/05/eric-segall-samesexmarriage-affirmativeaction.php
This article was prepared for publication by Elie Freedman, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org