Equality and Liberty

  • June 26, 2013

    by Jeremy Leaming

    A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people. 

    In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

    In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

    But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

    In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”  In this instance DOMA did not survive that type of scrutiny.

    In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

    “DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

  • June 24, 2013
    Guest Post

    by Gabriel “Jack” Chin, Professor of Law at the University of California, Davis School of Law.  He was represented in Fisher as amicus curiae by the Asian American Legal Defense and Education Fund, and is co-author of Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, a policy analysis of affirmative action in education.

    In Fisher v. University of Texas at Austin, No. 11-345 (June 24, 2013), the Court issued a non-decision decision, reversing the Fifth Circuit’s judgment upholding a race-conscious admissions policy but without holding that affirmative action is generally unconstitutional.  Justice Kennedy writing for seven justices held that reviewing courts were required to hold the details and implementation of an affirmative action program to the rigors of strict scrutiny, and remanded for that inquiry.  Only Justice Ginsburg dissented, claiming the program was valid as it was.  But the real question thought to be at issue in Fisher -- the validity of the diversity rationale for affirmative action approved by the Supreme Court in Bakke and Grutter -- was not reached by the majority and remains open.  (In concurrences, however, Justices Thomas and Scalia adhered to their view that Bakke and Grutter were wrongly decided).

    The University of Texas used two programs to increase diversity in undergraduate admissions.  One program, “Top Ten,” imposed by the Texas legislature, automatically admitted most high school graduates in the top ten percent of their classes at Texas high schools. Although formally race-neutral, Top Ten substantially increased diversity. The Court reported that under it, 4.5 percent of the entering class was African-American, and 16.9 percent Hispanic. Before 1996, when there was no Top Ten but UT used a race-conscious affirmative action program struck down in an earlier case, only 4.1 percent of the class was African-American, and 14.5 percent Hispanic. That is, a race-neutral program actually seemed to result in more diversity more than a race-conscious one. 

    But in 2004, UT concluded that Top Ten alone had failed to generate a critical mass of minority students, particularly in small classes. Accordingly, UT added race to the admissions process by making it a “plus” factor of unspecified weight as part of a holistic review of applications. The Fifth Circuit’s decision upholding this program was at issue in Fisher.

  • June 24, 2013
    Guest Post

    by Vinay Harpalani, Visiting Assistant Professor of Law at IIT Chicago-Kent College of Law. Some of Harpalani’s publications are available here.

    More than nine months after it heard oral arguments, the U.S. Supreme Court finally rendered its opinion in Fisher v. University of Texas. In a surprising 7-1 ruling, with only Justice Ginsburg dissenting, the Court vacated the Fifth Circuit ruling and remanded the case, but it did not declare the University’s admissions policy to be unconstitutional. Rather, it instructed the lower courts to apply strict scrutiny with regard to the key question: whether the University of Texas at Austin needs to use a race-conscious admissions policy, in addition to the Top Ten Percent Law, to achieve the educational benefits of diversity. This is exactly what one of my recent law review articles on the case had recommended, albeit for different reasons.

    Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one).  Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority.  The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous. 

    In Fisher, the Court states:

    [t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu­cational benefits of diversity … [and] … [i]f “‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense[]’” … then the university may not consider race.

  • June 24, 2013

    by Jeremy Leaming

    In an opinion not touching precedent the U.S. Supreme Court avoided invalidating on constitutional grounds the use of race-conscious admissions policies in higher education.

    In Fisher v. University of Texas at Austin, the high court led by Justice Anthony Kennedy reaffirmed precedent that race-conscious admissions policies are not inherently unconstitutional. Instead, Kennedy found that the lower court, the U.S. Court of Appeals for the Fifth Circuit, failed to apply heightened judicial review to the university’s admissions policy, which takes race into account. The university’s admissions policy was challenged by a white woman, Abigail Fisher, after she was denied admissions. Fisher lodged the lawsuit against university officials arguing that its race-conscious policy violated the Constitution’s Equal Protection Clause.

    Kennedy (pictured) was joined by Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Samuel Alito and Sonia Sotomayor. Justice Elena Kagan recused herself in the case and Justice Ruth Bader Ginsburg lodged a dissent.

    In a brief majority opinion, Kennedy reaffirmed the high court’s precedent on the use of race in higher education admissions policies. Admissions policies that consider race must be reviewed “under the Fourteenth Amendment” and subject to “strict scrutiny, for when government decisions ‘touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.’” Citing the same opinion, in Regents of the University of California v. Bakke, Kennedy noted that the high court had “identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body.”

    Nevertheless, the majority punted the case back to the Fifth Circuit, finding that it failed to properly apply a heightened judicial review. Instead the Fifth Circuit, Kennedy wrote, did not subject the university’s admissions policy to rigorous review as called for in the 2003 high court opinion, Grutter v. Bollinger, which upheld the University of Michigan law school’s race-conscious admissions policy.

    “Strict scrutiny does not permit a court of appeals to accept a school’s assertion that its admissions process uses race in a permissible way without giving close analysis to the evidence of how the process works in practice,” Kennedy wrote.

  • June 19, 2013

    by Jeremy Leaming

    In a final discussion about marriage equality at the 2013 ACS National Convention, Paul M. Smith, a longtime Supreme Court litigant, discussed why he thinks in the long run marriage equality will win the day across the country.

    Smith (pictured) successfully argued before the Supreme Court against a Texas sodomy law resulting in the landmark Lawrence v. Texas opinion. That opinion, among at least one other high court opinion, has helped advance equality for the LGBT community. The two cases before the Supreme Court – Hollingsworth v. Perry and U.S. v. Windsor center squarely on the constitutionality of same-sex marriage. But in both cases the high court has ways to avoid going too far. In Perry, the case raising constitutional challenges to California’s Proposition 8 could be dismissed on standing grounds or it could be narrowly tailored to only affect that state. In Windsor, the justices could invalidate the so-called Defense of Marriage Act (DOMA) on federalism grounds and not address whether laws targeting LGBT persons for discriminatory treatment subvert the Constitution’s equal protection clause.

    Smith, a longtime proponent of equality, talked with me about why he thinks it may be appropriate for the high court to avoid a finding that would require all states to recognize same-sex marriages.

    Regarding Windsor, the case involving DOMA, Smith said his “expectation is that the Court will probably reach the merits in the DOMA case and hold it unconstitutional. It’s possible though that they there may not be five votes to hold it unconstitutional under the equal protection clause. Instead Justice Kennedy seemed to be interested more in federalism arguments. My own view about that is -- that would be fine. If the law goes away, the law goes away and a whole lot of happy couples will be able to be treated as fully married by their own federal government. And that would be huge progress.”

    He continued, “In terms of Perry, if I were a justice I would probably not decide all 50 states have to marry same-sex couples this year. The change that is happening in public opinion is so dramatic, the political changes that are sweeping the country are so dramatic that I think the Court is a part of that process; it played a great role in getting it started with the Lawrence decision and others. But they have ways of being a part of it without taking it all the way to the finish line. And I think they would prefer to do it that way, and I don’t tend to disagree with them. I know that many younger people who would think that is crazy; that there is no reason why the Court shouldn’t do what’s right, right now. And I certainly think that the right answer in the long run will be that there should be marriage equality mandated by the federal Constitution.”

    Smith and Mary Bonauto, of the Gay & Lesbian Advocates & Defenders (GLAD), provide more detail on federalism and marriage equality in this guest post. Watch the brief interview with Smith below or visit here.