What do all these things have to do with one another? On April 22, 2014, in Schuette v. BAMN, the Supreme Court ruled on a constitutional challenge to a Michigan ballot measure providing that its state government, along with universities and schools, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin. . . .” Opponents claimed that such a measure violated the Equal Protection Clause of the Fourteenth Amendment on the grounds that it prevented race-based preferences which were needed to achieve equality. Proponents claimed a measure mandating equal protection under the law regardless of race could not possibly violate the Equal Protection Clause. Without deciding the issue of whether race-based preferences themselves were constitutional, in an opinion authored by Justice Kennedy, the Court distinguished this case from others in which a law was enacted to address a specific history of discrimination, and sided with the proponents in holding that this law mandating equal treatment did not violate the Equal Protection Clause. But how did the Court really get there?
While the case carried with it much emotion, and dragged around a legal thicket of cases dealing with race-based preferences in education, Justice Kennedy’s decision was remarkable in weighing heavily in favor of permitting voters to decide how their states will handle difficult and sensitive public policy issues. It is true, as the Court reminded us, that constitutional rights must be respected and cannot be overridden by the voters. But “[t]here was recognition that our federal structure “‘permits innovation and experimentation’ and ‘enables greater citizen involvement in democratic processes.’”Scheutte v. BAMN, 572 U.S.___ (2014) (slip op., at 4-5) (quoting Bond v. United States, 564 U.S.__ (2011) (slip op., at 9)).
Consider the following reasoning by Justice Kennedy, which could just as well be applied to a challenge to a state marriage law:
- “‘[T]he States may perform their role as laboratories for experimentation to devise various solutions. . . .’” Schuette, slip op., at 4 (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)).
- “[Windsor] Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States.” Schuette, slip op., at 4.
- “While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of [legalizing same-sex marriage] race-conscious admissions policies in higher education.” Schuette, slip op., at 5.
- “Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that [a preference for natural marriage] race-based preferences should be adopted. . . . The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.” Schuette, slip op., at 13.
- “The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper.”
- “By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of [how to define marriage for their own state] granting race-based preferences that raises difficult and delicate issues.” Schuette, slip op., at 15 (internal citation and quotation marks omitted).
- “Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject [touching upon how states will define the foundational institution of marriage] against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. 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.” Schuette, slip op., at 15-16.
- The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. 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. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use [sexual] racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.” Schuette, slip op., at 16-17.
- “The electorate’s instruction to governmental entities not to embark upon the course of race defined and race-based preferences was adopted, we must assume, because the voters deemed preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.” Schuette, slip op., at 18.
- “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.” Schuette, slip op., at 18.
- “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. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette, slip op., at 18.
This is strong language from the Court justifying its decision to leave sensitive public policy issues for the voters of each state to decide. The Court should apply the same reasoning to any challenge to a state marriage law. Apart from the lack of support for a federal constitutional right to same-sex marriage, this is a sensitive issue touching on how communities within America choose to live and organize themselves. The Court shows wisdom in staying out of such issues in Scheutte, and it should stay out of such issues in the context of state marriage laws.
Justice Kennedy’s justifications for declining to involve the Court in classifying racial groups according to their interests is also of some relevance to marriage. If courts should not determine the interest of groups as regards race because such a “venture not only would  be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms,” Schuette, slip op., at 12, why should the court not also avoid perpetuating “classifications of questionable constitutionality” in the same-sex marriage context?
Consider the following:
- The Court properly refused to review under strict scrutiny “[a]ny state action with a ‘[marriage] racial focus’ that makes it ‘more difficult for certain [marriage] racial minorities than for other groups’ to ‘achieve legislation that is in their interest.’”
- In essence, according to the broad reading of [Windsor] Seattle, any state action with a “[sexual] racial focus” that makes it “more difficult for certain [sexual] racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of [Windsor] Seattlethat the [district courts] Court of Appeals found to be controlling here. And that reading must be rejected.”
If providing minority groups with the advantage of constitutional strict scrutiny in order to achieve legislation “that is in their interest” would not be considered constitutionally required, Schuette, slip op., at 11, it must be asked: why bless with strict scrutiny the almost identical claims of same-sex marriage groups, though they be in the minority, are “legislatively disadvantaged,” and certainly have had difficulty in achieving their “interests” legislatively?
Indeed, it is precisely because they’ve had only limited success in state legislatures that proponents of same-sex marriage have sought constitutional rulings in order to ensure these “matters [are] foreclosed from voter review or participation.” Schuette, slip op., at 13. “Including” a right to same-sex marriage in the Constitution will ensure that no states’ rights are protected, voters will grow disenfranchised at being shut out of the political process, and states will be denied their place as “laboratories” according to the design of the federal constitutional structure.
Despite lower courts’ attempts to twist their way out of the law, well-settled Supreme Court jurisprudence has always mandated the result that the Constitution does not provide a right to same-sex marriage. No such right is enumerated, and cannot now be invented at this time. Washington v. Glucksberg, 521 U.S. 702 (1997). The Court should decline to dictate a federal constitutional right to same sex marriage and should leave this determination to the states. The reasoning in Schuette v. BAMN makes this result more hopeful.