Justice Kennedy Let the Voters Ban Affirmative Action. Will He Let Them Ban Gay Marriage, Too?

In
his opinion last month upholding a Michigan constitutional
amendment forbidding the use of affirmative action in state
colleges and universities, Justice Anthony Kennedy sang the praises
of democracy. “This case is not about how the debate about racial
preferences should be resolved. It is about who may resolve it,”
Kennedy wrote in Schuette
v. Coalition to Defend Affirmative Action. “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.”

In addition to banning affirmative action, Michigan voters have
also banned gay marriage. In 2004 the state’s electorate weighed in
on that sensitive issue, voting to amend the state constitution to
define marriage as “the union of one man and one woman.” 

That 2004 amendment is now under attack in federal court.
Earlier this week, Bill Schuette, Michigan’s attorney general,
urged the U.S. Court of Appeals for the 6th Circuit to uphold the
ban. “Our system of democracy is based on the premise that the
people are capable of deciding even sensitive issues on ‘decent and
rational grounds,'” his brief states, in a none-too-subtle nod to
Kennedy’s affirmative action ruling.

At SCOTUSblog, Lyle Denniston
notes that Schuette is not the only state official trying to
hitch a gay marriage ban to Kennedy’s wagon. “In two [other]
federal appeals courts,” Denniston writes, “where three such bans
are now under review, attorneys defending the bans have sought to
take advantage of the Justices’ April 22 decision in Schuette
v. Coalition to Defend Affirmative Action.”

The strategy here is obvious. If the Supreme Court trusts the
voters when it comes to a hot button issue like affirmative action,
why not also trust them when it comes to the fractious issue of gay
marriage?

The irony is that Justice Kennedy, the author of the affirmative
action ruling now being deployed, just happens to be the Supreme
Court’s leader when it comes to invalidating state and federal
restrictions on gay rights. In the 1996 case Romer
v. Evans, for example, Kennedy’s majority opinion struck
down Colorado’s Amendment 2, a voter initiative that had amended
the state constitution in order to forbid government officials from
taking any action designed to protect gays and lesbians from
discrimination.

Similarly, in 2003’s Lawrence
v. Texas, Kennedy nullified the Lone Star State’s
Homosexual Conduct Law, a democratically enacted statute
criminalizing same-sex relations. And then there’s last term’s
United
States v. Windsor, where Kennedy invalidated a portion of
the Defense of Marriage Act, a federal law passed by wide
bipartisan margins in Congress and signed by President Bill
Clinton.

To say the least, Kennedy has shown little interest in deferring
to the democratic process when gay rights are at stake. Yes, he
sided with Michigan voters in the affirmative action case; but keep
in mind that Kennedy has never voted in favor of an affirmative
action program during his three decades on the Court. By contrast,
he has consistently ruled in favor of gay rights—voting public be
damned. I expect he’ll continue that trend of aggressive judicial
review when the Supreme Court finally tackles a gay marriage ban on
the merits.