“Will High Court’s Affirmative Action Ruling Affect Gay Marriage Cases?”

Bill Rankin (in article originally appearing in the AJC):

The U.S. Supreme Court’s decision this week 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 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.”

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