The U.S. Supreme Court’s decision Tuesday in a Michigan affirmative action case gave great deference to the voters’ right to decide controversial issues at the ballot box.
The court’s plurality opinion, authored by Justice Anthony Kennedy, also appears to give legal ammunition to supporters of bans against same-sex marriage. In those lawsuits, including one filed here in Atlanta on Tuesday, gay and lesbian plaintiffs are asking the courts to overturn referendums approved by voters.
“It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process,” Kennedy wrote in Tuesday’s decision, which involved the state’s ban of preferential treatment in college admissions. “… It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Legal experts said Kennedy may hear those words again, in a different context.
The high court should accept a same-sex marriage case during its next term or the one after that, predicted Rick Hasen, a University of California, Irvine, law professor.
When that happens, “I expect proponents of traditional families to be citing Kennedy’s words in the Michigan case right back at him,” Hasen said. “It does create some tension.”
If supporters of the gay marriage ban lose their expected arguments that traditional families are the best way to raise a child, they could then argue that such matters are better left to the political process, said Hasen, who specializes in election law.
The federal lawsuit filed Tuesday in Atlanta challenges a constitutional amendment passed overwhelmingly by Georgia voters a decade ago. The suit’s gay and lesbian plaintiffs are two Atlanta police officers; the owners of a Snellville pet daycare center; an attorney and a Realtor; and a woman whose longtime partner died in March. They contend the ban against same-sex marriage denies them equal protection under the law.
The Michigan affirmative action decision is significant because Kennedy is often the swing vote in the court’s most contentious cases. But this is also a reason opponents of same-sex marriage bans should not be too worried, legal experts said.
“When it comes to issues of gay rights in particular, Justice Kennedy has been a leader on the court,” said Robert Schapiro, dean of Emory University’s law school. “Given his decisions in those cases, I think the Michigan opinion is unlikely to be of great influence over the same-sex marriage cases.”
Washington lawyer Thomas Goldstein, who has argued more than 25 cases before the Supreme Court, agreed.
“In my opinion, gay rights stand on a different footing with Kennedy,” he said. “The Colorado referendum case is a good illustration of that.”
Goldstein was referring to the high court’s 1996 ruling, authored by Kennedy, that nullified a Colorado constitutional amendment that banned the passage of laws protecting gays and lesbians.
Seven years later, Kennedy authored the court’s landmark decision invalidating Texas’ sodomy law. And last year, he wrote the majority opinion that struck down the Defense of Marriage Act, which denied federal benefits to same-sex couples.
Kennedy appeared to leave himself some wiggle room in the Michigan affirmative action decision, if he is so inclined to strike down constitutional amendments banning same-sex marriage. The Michigan case, he said, was about whether voters could choose to prohibit the consideration of racial preferences in governmental decisions.
When the law inflicts or encourages harm t0 minorities, “the Constitution requires redress by the courts,” Kennedy wrote. In the Michigan case, “those circumstances are not present here.”
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