Why Does J. Kennedy Leave Affirmative Action, But Not Gay Rights, to the Democratic Process?

Today is a day to celebrate the right to same sex marriage recognized by the Supreme Court in its 5-4 decision in Obergefell v. Hodges. It is a remarkable achievement considering where the country was two decades, and one decade ago. But the majority opinion leaves open many questions, and I want to look at one in this post: Why did the Court reject the democratic process argument, but accept it in the Schuette case?

The majority opinion recognizes the right to same sex marriage as a fundamental right under the due process clause, as well as protected by the equal protection clause (although that argument is much less developed).  The main response of the chief dissent coming from Chief Justice Roberts is a political process objection: this is an issue that should be decided by the states and the democratic process, and not by unelected federal judges. Roberts goes so far as to analogize the decision to recognize this fundamental right to the Lochner era. Here is a key passage from Roberts:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right togovern themselves. They would never have imaginedyielding that right on a question of social policy to unaccountable and unelected judges. And they certainly wouldnot have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy,debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist,The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). As a plurality of this Court explained just lastyear, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).

Schuette was a case in which the Court upheld a Michigan law barring affirmative action in education. Here is how Justice Kennedy, in the plurality opinion put the question before the Court there: “The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

Kennedy’s answer was that the question of affirmative action was to be left to the people themselves:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject 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

In Obergefell, Justice Kennedy purported to distinguish Schuette and to respond to CJ Roberts’ citation of it in his dissent:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they canlearn and decide and then, through the political process,act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in oneof its essential dimensions, of the right of the individualnot to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rightsof persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17).This holds true even when protecting individual rightsaffects issues of the utmost importance and sensitivity.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their owndirect, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyondthe reach of majorities and officials and to establish themas legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid. It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.

(My emphasis.)

So why the different treatment? Why trust the voters in one area but not the other? The answer seems to lie in the psychology of Justice Kennedy. He is skeptical of race-based preferences but not of gay rights. Indeed, it looks like all the other Justices on the Court are more consistent in their approaches to these questions than Kennedy. He is the only one who voted with the majority in both Schuette and Obergefell. When to trust the voters? When they are likely to vote with Justice Kennedy.

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