Today’s decision in Schuette v. BAMN held that states do not violate the Equal Protection Clause when they require equal treatment of citizens regardless of race. On one level, the very proposition that equal treatment could violate Equal Protection is absurd, as Justices Scalia and Thomas highlighted in their opinion.
Justice Kennedy in his opinion, however, focused on the democratic process and the trust that our form of government places in the people to work out the answers to contentious political issues. The question of racial preferences is certainly one of those issues, but the hottest political debate by far that pits states against the federal government is that of the definition and redefinition of marriage.
Kennedy’s language in today’s opinion is very encouraging for those who defend the states’ constitutional authority to resist federal pressure to redefine marriage. He describes the statewide initiative allowing Michigan voters to amend the Michigan Constitution as “a basic exercise of their democratic power” and lauds the initiative system as a means “to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.”
This high regard for the initiative process was evident in Kennedy’s dissent in Hollingsworth v. Perry, the case challenging California’s Proposition 8 that amended the state constitution to define marriage as between a man and a woman. In that case, he lauded the initiative process as “establish[ing] a lawmaking process that does not depend upon state officials” to keep the power of government ultimately in the hands of the people themselves. He also praised our system of government for “allow[ing] disputes of public policy to be resolved by the political process rather than the courts.”
Today’s decision elaborates on the principle that the most contentious issues should be decided by the people and their democratically-elected representatives rather than unelected federal judges.
Here is Kennedy’s language from today’s opinion, which could have just as easily applied to the debate over the redefinition of marriage:
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.
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.
In characteristic Kennedy fashion, there is a catch: “when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts.” He suggests the courts should overturn even race-neutral laws if they are “designed to be used, or [are] likely to be used, to encourage infliction of injury by reason of race.” As long as maintaining a state’s definition of marriage is cast as a no more than a mean-hearted attempt to stigmatize certain sexual practices rather than preserving the family through an institution as old as humanity itself, Kennedy’s vote may still be with those asking the federal courts to overturn states and their citizens in “a basic exercise of their democratic power.”
But to the extent that the public at large is willing to engage in reasoned debate without sinking to ad hominems against either side, I would hope Justice Kennedy would adopt the same approach in the context of marriage that he did today in the context of racial preferences:
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 voter’s reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.
As Kennedy also said, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” In this and other major policy debates, the final word should be in the hands of the American people.