Civil and Human Rights

Gays May Diverge From Blacks as Top Court Reshapes Rights

By Greg Stohr


The legal fortunes of gays and racial minorities may move in opposite directions when the U.S. Supreme Court’s term reaches its climax in late June.


In agreeing last week to consider two gay-marriage cases, including a fight over California’s ban, the justices ensured that the coming months will be pivotal for U.S. civil rights.


Gays are looking to gain new legal safeguards just as racial minorities may lose some of theirs. Even as the court weighs gay marriage rights, it will consider ending decades-old protections for blacks and Hispanics in cases involving voting rights and university affirmative action. 


In each case, the deciding vote may belong to Justice Anthony Kennedy, who is both a skeptic of racial preferences and a backer of gay rights.


“It would be deeply unfortunate if the court moved forward with equality for gay men and lesbians at the same time it moved backward in terms of progress on racial equality,” said Doug Kendall, president of the Washington-based Constitutional Accountability Center, which backs gay marriage and legal protections for racial minorities.


The court last week decided to dive into the gay-marriage issue, accepting an appeal in a dispute over California’s Proposition 8. That 2008 ballot measure reversed a decision by the California Supreme Court, which five months earlier had enshrined gay marriage as a state constitutional right.


Fighting Chance


The justices also will review the federal Defense of Marriage Act, a 1996 law that defines marriage as solely an opposite-sex union. The statute blocks legally married gay couples from claiming the same federal tax breaks and other marriage benefits that opposite-sex spouses receive.


The court will probably hear arguments in the gay marriage cases in March. In each, same-sex marriage advocates have at least a fighting chance, given Kennedy’s history.


The Ronald Reagan appointee wrote a 1996 decision invalidating a Colorado constitutional amendment that barred cities and counties from enacting anti-discrimination laws to protect gays.


The San Francisco-based 9th U.S. Circuit Court of Appeals relied on that ruling in striking down Proposition 8. The panel said California, like Colorado, had improperly singled out gays for unequal treatment.


Kennedy also wrote the court’s 2003 decision that said states can’t criminalize gay sex acts. Overturning the convictions of two men in Texas, he wrote that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”


Cautionary Note


Those words came with a cautionary note, however, as Kennedy said he wasn’t passing judgment on gay marriage. He said the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”


Backers of Proposition 8 say they’re confident Kennedy will vote to uphold the measure and refuse to recognize a constitutional right to same-sex marriage. Even after new laws go into effect allowing gay marriage in Maine, Maryland and Washington, only nine of the 50 states, plus the District of Columbia, will permit the practice.


“It would be unlike Kennedy to overturn the laws of 41 states,” said Maggie Gallagher, a senior fellow at the American Principles Project, a Washington-based group that opposes gay marriage.


The Defense of Marriage Act will be easier for Kennedy to strike down, Gallagher said. The law marked the first time the federal government had explicitly defined marriage, an issue traditionally governed by state law.


‘Strong Temptation’


“There’s going to be a strong temptation for him to split the difference and think he’s preserving the principle and integrity of the court,” said Gallagher.


The Proposition 8 case offers several avenues for a narrow gay-rights victory, one that might be more palatable to Kennedy than forcing all 50 states to recognize same-sex marriage. The high court might effectively limit its ruling to California by adopting the 9th Circuit’s reasoning that a state can’t rescind marriage rights once they are conferred.


The justices could also endorse what Kenji Yoshino, a constitutional professor at New York University School of Law, has called the “eight-state solution.” That would bar states from giving gay couples all the rights and responsibilities of marriage while withholding that label from them.


Yoshino says Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island would be affected by such a ruling.


Another Option


The court gave itself another option last week when it said it will consider whether the sponsors of Proposition 8 had the legal right to file an appeal. A conclusion that the answer is “no” would scuttle the case and let gay marriage resume in at least some parts of California.


Gay-rights advocates also may accomplish a major legal objective in the Defense of Marriage Act case. The Obama administration argues that courts should give “heightened scrutiny” to laws discriminating against gays, just as judges already do in cases involving race or gender.


“There’s such a range of possibilities, it’s impossible not to be somewhat concerned but also hopeful they’ll do something good,” said Paul Smith, a Washington lawyer who has helped lead the fight against the Defense of Marriage Act.


At the same time, the court is positioned to overturn decades-old legal protections for racial minorities, including university affirmative action programs.


University Admissions


The court heard arguments in October on the University of Texas’ admissions program, which uses race as a consideration in admitting as much as a quarter of each class. With all five Republican-appointed justices critical of racial preferences, the biggest question for the nine-member court may be how broad its decision will be.


A far-reaching ruling would threaten affirmative action programs around the country.


And early next year the justices will hear arguments on a provision in the 1965 Voting Rights Act, a law they almost struck down in 2009. Writing for the court in that case, Chief Justice John Roberts said the provision, which requires some states to get federal clearance before changing their voting rules, raised “serious constitutional questions.”


Kennedy potentially would join his four conservative colleagues in the race cases while agreeing with the four Democratic appointees on at least some issues in the gay marriage cases. The 76-year-old justice couples his opposition to racial distinctions with an embrace of liberty as a defining constitutional value.


‘Highly Skeptical’


“On the one hand, you have five justices who are highly skeptical about racial discrimination even if it’s supposed to be benign,” said Randy Barnett, a constitutional law professor at Georgetown University Law Center in Washington. “And then on the other hand, you have a different five justices who are very concerned about liberty and who could view the right to marry as a form of liberty.”


Whether that outcome occurs will depend on one man, says Geoffrey Stone, a constitutional law professor at the University of Chicago Law School.


“It’s all about Anthony Kennedy,” he said.

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