Yesterday, the Supreme Court upheld Michigan’s ban on the use of affirmative action in college admissions. Justice Kennedy wrote the opinion for a very divided Court. Kennedy’s opinion explained that the political process doctrine cases do not apply because those cases all involved specific racial injuries that didn’t exist in this case. For now at least, I’ll leave the merits of that analysis to be determined by others, but suffice it to say that Kennedy’s opinion could (and probably should) have ended there. But it went on. In fact, it went on for five more pages. And in those five pages, Kennedy talked about same-sex marriage—not about racial preferences in college admissions.
Of course, Kennedy didn’t overtly talk about same-sex marriage, but it sure sounded like that’s what he was talking about. He started this section of his opinion by pointing out that if SCOTUS were to strike down the Michigan law banning racial preferences, it would amount to the Court finding that the past 15 years of state public debate on this issue have been meaningless because SCOTUS was just going to take the issue out of the hands of voters anyway. (p. 14) This same argument could be made in a decision holding that there is no constitutional right to SSM.
Then, Kennedy really ramped up the rhetoric. He said the right of the individual not to be injured by the unlawful exercise of governmental power is an essential freedom secured by the Constitution, and that “liberty’s full extent and meaning may remain yet to be discovered and affirmed.” (p. 15) That is unequivocally pro-same-sex marriage language. But the paragraph wasn’t over. Here is the next sentence:
“Yet freedom does not stop with individual rights.”
Kennedy then waxed poetic about a type of freedom also guaranteed by the Constitution that acts as a counterweight to individual freedom: the freedom of citizens to act democratically to shape their futures. In other words, Kennedy did note that the Constitution sometimes protects individuals from majorities that want to trample their rights, but he focused on the fact that political majorities also have rights protected by the Constitution, and he ultimately concluded that majority’s rights often overcome the individual’s. To put it in Kennedy’s words, this right of the majority is “the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” (p. 16) This line of reasoning would be disastrous to LGBT advocates in an opinion about SSM, as the necessary conclusion would be that each state has the right to decide for itself whether same-sex marriages should be valid.
And Kennedy went on and on about the importance of respecting the democratic process: “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.” (p. 17) Does anybody really think he was still talking about racial preferences at this point? “Decent and rational grounds”? That doesn’t sound like strict scrutiny, which applies to racial classifications. He’s talking about LGBT issues, which voters can still decide based on “decent and rational grounds.”
Kennedy spoke so highly of the public’s ability to solve difficult political problems that it’s hard to believe that he’ll ever rule in favor of an individual right again: “An informed public can, and must, rise above [racial division and discord]. 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.” (p. 17)
Remember Justice Scalia’s famous dissent in Windsor, the case in which Justice Kennedy’s majority opinion struck down part of DOMA? In that dissent, Scalia made a big show of taking excerpts from Kennedy’s opinion, changing a few words around, and demonstrating that Kennedy’s language could be easily transformed into an opinion declaring a constitutional right to same-sex marriage. (see page 23 of the dissent) That was greatly entertaining, but I can use the same technique to make the opposite point using Kennedy’s Schuette decision.
Imagine that next year, SCOTUS reviews Michigan’s ban on same-sex marriage. Here is the final few paragraphs of Kennedy’s Schuette opinion with just a few words changed to read as if it were the final few paragraphs in a decision upholding Michigan’s ban on SSM:
Mulkey, Hunter, and Seattle [Windsor, Lawrence, and Romer] are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race [sexual orientation]. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial [marital] categories and, second, the grant of favored status to persons in some racial [marital] categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences [expanding the legal definition of marriage] was adopted, we must assume, because the voters deemed a preference system [an altered definition] 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 [a dangerous change to family structure]. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs [laws] designed to increase diversity [expand the definition of marriage]—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism [discrimination].
This case is not about how the debate about racial preferences [sexual orientation] 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. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”). Deliberative debate on sensitive issues such as racial preferences [same-sex marriage] 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.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Why would Justice Kennedy include in his Schuette opinion these five unnecessary pages that seem to be more applicable to same-sex marriage? Because he’s furious! Everybody is misinterpreting his Windsor opinion and there’s almost nothing he can do about it. What’s worse is that Justice Scalia showed him up. Scalia anticipated the trend of district courts finding a constitutional right to same-sex marriage based on Kennedy’s Windsor opinion. As it turns out, Scalia was dead on, and Kennedy is furious about it. Kennedy wants to scream, “NO, YOU IDIOTS! I WAS NOT ANNOUNCING A RIGHT TO SAME-SEX MARRIAGE! IN FACT, I BELIEVE THE OPPOSITE! STOP MISINTERPRETTING WINDSOR AND MAKING SCALIA LOOK GOOD AT MY EXPENSE!!!” But Kennedy can’t do that because announcing how he would decide a future case would violate about a dozen unwritten rules of being a Supreme Court Justice.
So what can Kennedy do? He can insert five unnecessary pages into a high-profile (but unrelated) decision waxing poetic about the reasons why he believes that there is not a constitutional right to same-sex marriage—but without outright acknowledging that he’s really talking about same-sex marriage.
As I’ve said before, Justice Kennedy does not believe that there is a constitutional right to same-sex marriage. You’ll be hard-pressed to find a single expert who agrees with me. But it’s true.