Masking White Supremacy

“They reached for tomorrow / But tomorrow’s more of the same”

In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Republican-appointed supermajority of the Supreme Court held that the use of race in the undergraduate admissions programs of Harvard College and the University of North Carolina was unlawful under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. Among other problems, Chief Justice Roberts’s opinion for the Court in SFFA hides what the majority justices are doing – hides how it is changing the applicable constitutional law, by misrepresenting that law – and its reasons for what they did may rest on what they themselves would call racial stereotypes and/or an unvoiced belief in the superiority of white people. 

The majority justices claim to be applying the rules from Supreme court precedents for evaluating equal protection challenges to race-based affirmative action in higher education admissions. The majority opinion says, using a past tense, that “we have permitted race-based admissions only within the confines of narrow restrictions” (emphasis added). Summarizing, it states: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” While it has the chutzpah to accuse Justice Sotomayor’s dissent (joined by Justices Kagan and Jackson) of disregarding stare decisis and “want[ing]” the Court’s equal protection law “to be different” than its precedent shows it to be and “wrench[ing that] case law from its context,” in fact, the majority is applying new rules, “moving the goal posts” as the dissent puts it at one point.

 

The changes in the governing law the majority opinion wreaks are apparent in its arguments against Harvard’s and UNC’s admissions programs. It contends that the defendant schools’ justifications for their consideration of race in admissions served purposes too “amorphous” to satisfy strict scrutiny – but that reasoning would equally have doomed the University of Michigan law school’s admission policy that the Supreme Court upheld in Grutter v. Bollinger in 2003, a case upon which the majority opinion leans heavily. And the majority’s amorphous purpose reasoning would seem wholly to preclude any use of applicant’s race in admissions, thus necessitating the overruling of Bakke v. Regents of the University of California (1978), Grutter, Fisher v. University of Texas at Austin (2013) (Fisher I), and Fisher v. University of Texas at Austin (2016) (Fisher II) – something the majority does not fess up to doing. And thus as the dissent in SFFA notes, “the Court does even attempt to make the extraordinary showing required by stare decisis” before overruling those decisions.

 

But overrule it necessarily does, as consideration of the majority opinion’s reasoning about a ban on using race as a negative makes indisputable. Without any quotation or even citation, the majority asserts that “our cases have stressed that an individual’s race may never be used against him in the admissions process.” Why did the majority maintain that Harvard’s and UNC’s admissions practices violated this stricture, even though the schools treated the race of certain underrepresented minority applicants as a plus in the admissions process? Because “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” This means that colleges and university cannot consider race at all in admissions. And that holding is incompatible with the holdings of Bakke, Grutter, Fisher I, and Fisher II, necessarily overruling them. But because the Court, as the dissent accurately notes, does not attempt to justify this overruling, it may blunt the force of any criticisms it might endure. Were it widely understood by the public that, as with the Dobbs decision’s express overruling of Roe v. Wade last year, the Court with its new composition is again overruling constitutional precedent that has structured life in the U.S. for decades, the majority might be exposed to sharper objections from more quarters.

 

But not only does the majority opinion in SFFA mask what the majority is doing, its reasoning and lacunas therein also obscure why the Justices may be doing it. The majority deems it disqualifying that the policies at Harvard and UNC do not have a “logical end point” (quoting Grutter). The majority interprets those policies as “promising to terminate their use of race only when some rough percentage of various groups is admitted,” thereby “effectively assur[ing] that race will always be relevant.” (quoting City of Richmond v. J.A. Croson Co. (1995)). But how would that be the case? The majority apparently presupposes that it would never be the case that a race-blind admissions process could produce student bodies that, for example, approximately mirror the demographics of a given population (that of the state where a college is located, say, or that of the U.S. as a whole), even, I assume, in a future, racially egalitarian U.S. But why not? The Court has in the past criticized as “completely unrealistic” what it believed was the city of Richmond’s “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” But why does the majority’s contrary decision not reflect an assumption – a “stereotype” about racial groups of a type seemingly condemned by the majority’s reasoning in this case – that they would, in an egalitarian society, not have similar interests in various fields?

 

One possible answer is that the majority believes that (non-Asian) minorities will never achieve at the levels that white people do, that (non-Asian) minority students would never (without consideration of race) be admitted to competitive universities on the “merits” at comparable rates. This is not an attitude unknown to U.S. Supreme Court justices, including one the SFFA majority treats as a reliable source on the meaning of the Equal Protection Clause, the first Justice Harlan. Harlan, who dissented from Plessy v. Ferguson’s upholding a state law requiring railroads to segregate black and white passengers on railroad cars (on the ground that separate but equal accommodations would satisfy equal protection). The majority quotes Justice Harlan’s Plessy dissent for the claim that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan, in the very passage the majority quotes (and in language the majority reproduces), was condemning legal measures reflecting a belief in a “superior, dominant, ruling class of citizens,” and a correlative belief in an inferior class, a “caste.” But when it comes to his actual racial views, the majority doesn’t recount them.

 

What else did Harlan say in his famed Plessy dissent (besides a detour about the inevitable alienness of “the Chinese race”)? “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.… The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.” 

 

If that is what they believe (and it could explain why they don’t think racial groups in American will ever even “roughly” be “qualified” for admission to at least elite universities), the majority justices may have learned not to say that part aloud, learned not to state publicly that the white race will always be dominant. They will omit this from their adulation of Justice Harlan. They will not repeat the mistake – condemned now by history – of people like Judge J. Whitfield Davidson, who in the wake of the Supreme Court’s decisions in Brown v. Board of Education (I and II) said publicly: “[T]he white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” But as a proposition about the beliefs of a majority of justices who have repeatedly made it harder to redress racial discrimination even in areas as fundamental as voting, who regard it (as the SFFA opinion quotes) as “‘sad’” were “each identifiable minority assigned proportional representation in every desirable walk of life” (emphasis added), and who seem utterly convinced that in educational achievement that would not be possible without race-based affirmative action, such sociological white supremacy is, sadly, not unthinkable.

 

The Baker v. Nelson Argument Against Marriage Equality Litigation

“It’s such a shame

It’s such a crime

To be so close

And yet so far

So overdue

Yet underpar

So out of time

It’s too sublime”

I've posted a draft of my article “Baker v. Nelson: Flotsam on the Tidal Wave of Windsor’s Wake” on the Social Science Research Network (linked here).  The article is forthcoming in the Indiana Journal of Law and Social Equality.  The federal courts that have considered whether the Supreme Court’s summary rejection (without opinion) of a same-sex couple’s constitutional challenges to Minnesota's exclusionary marriage laws in Baker v. Nelson in 1972 has been superseded by subsequent developments in constitutional doctrine have agreed that Baker is no longer dispositive.  Yet defenders of mixed-sex marriage laws continue to invoke Baker in desperate bids to keep lower courts from addressing same-sex couples’ constitutional justice claims.   These marriage exclusionists are wrong to rely on Baker, and the courts that have seen Baker swept to the side in the wake of the Supreme Court’s historic decision in United States v. Windsor in 2013 have done so properly.  Or so I argue in “Windsor’s Wake.”

Federal Courts Hold Oregon & Pennsylvania Marriage Exclusions Unconstitutional

 “Cause a double-rainbow is hard to find”

On two consecutive days, federal trial courts held unconstitutional state laws that excluded same-sex couples from marriage and refused to recognize lawful marriages of such couples from other jurisdictions.  On Monday, May 19, in Geiger v. Kitzhaber (opinion here), U.S. District Judge Michael J. McShane held that Oregon’s statutory and state constitutional marriage exclusions violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.  Judge McShane’s order in the case permanently enjoined the state and county defendants from enforcing the laws, effective immediately.  (He declined to “stay” his judgment to put it on hold and keep same-sex couples from marrying, though the U.S. Court of Appeals for the Ninth Circuit could impose a stay, as could the U.S. Supreme Court.)  On Tuesday, May 20, in Whitewood v. Wolf (opinion here), U.S. District Judge John E. Jones III held that Pennsylvania’s statutes denying marriage to same-sex couples and denying recognition of same-sex couples’ valid marriages from other jurisdictions violated same-sex couples’ equal protection rights and their fundamental right to marry under the Fourteenth Amendment’s Due Process Clause.  Judge Jones likewise permanently enjoined the state and county defendants from enforcing those laws.  Following last week’s decision holding Idaho’s marriage exclusion unconstitutional, and the prior week’s ruling against Arkansas’s marriage ban, these Oregon and Pennsylvania rulings heighten the momentum of the national campaign for marriage equality and underscore the vacuity of the arguments for the continued denial of civil marriage to same-sex couples.

Some Geiger plaintiffs, from left, Lisa Chickadonz, Christine Tanner, Ben West and Paul Rummell.  Photo: Don Ryan/AP

In Geiger, the Oregon case, the state had refused to defend the state’s discriminatory marriage laws, concluding they were unconstitutional and joining the plaintiffs in asking the court to hold them unconstitutional.  The arguments against it were presented by amici curiae (“friends of the courts,” or interested persons or groups who are formally plaintiffs or defendants in the case) and were the same sorts of claims that are by now well familiar.  Like many other judges since the Supreme Court’s decision holding part of the Defense of Marriage Act unconstitutional law summer in U.S. v. Windsor, the Geiger judge concluded that the potential justifications did not even satisfy “rational basis review,” the most deferential form of scrutiny.  (The judge in dicta rejected the plaintiffs’ argument that the marriage laws classified on the basis of sex, which would subject them to a less forgiving “intermediate” or “heightened” form of scrutiny.  But his reasoning on this point, illogically trying to distinguish Loving v. Virginia, was neither persuasive nor necessary to his ruling, since he held that the laws fail even rational basis review.  Thus, this opinion should not even be persuasive precedent for the counter-intuitive proposition that laws that keep same-sex couples from marrying do not classify on the basis of sex.)

Applying rational basis review, the judge ruled, as have many others, that tradition arguments and moral disapproval were legally insufficient to uphold laws challenged as denying people equal protection on the basis of sexual orientation.  He also concluded that “[t]here is simply no rational argument connecting” a potential state interest in “natural” procreation or other child-welfare-focused interests to the state’s marriage bans, which undermine rather than advance the state’s interests in the wellbeing of all its children.  “The marriage laws place the plaintiffs and other gay and lesbian couples seeking to marry in Oregon at a disadvantage, and the laws do so without any rationally related government purpose.”  Thus, they violate the Constitution’s guarantee of equal protection, were unconstitutional, and were enjoined.

Two of the Whitewood plaintiffs, Angela Gillem and Gail Lloyd  Photo: ACLU

In the Whitewood case, Judge Jones applied “intermediate scrutiny” to the plaintiffs’ equal protection claim, a form of judicial review less deferential to the government; instead of asking whether the plaintiff had proven that the statute was not rationally related to a legitimate state purpose, intermediate scrutiny places the burden on the government to prove that a discriminatory law furthers not merely a legitimate purpose but one that counts as “important,” and that the law is not merely rationally but substantially related to such important purposes.  Because the proper level of scrutiny in the Third Circuit was not settled, the judge examined the various factors the Supreme Court had deemed relevant, such as a history of discrimination, the irrelevance of sexual orientation to people’s ability to contribute to society, and a relative lack of political power.  Interpreting the plaintiffs’ arguments not to be pressing for full “strict scrutiny” (as would be applied to racial discrimination), the court concluded that intermediate scrutiny was appropriate.  Applying that scrutiny, Judge Jones held that the state’s asserted interests in “the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses” may or may not satisfy rational basis review but were not sufficient to provide the “exceedingly persuasive justification” needed to uphold discriminatory laws reviewed under equal protection.  Thus the marriage laws were unconstitutional.

In his fundamental right analysis, Judge Jones first concluded, like most other courts since the Windsor decision, that the Supreme Court’s 1972 ruling in Baker v. Nelson rejecting a challenge to Minnesota’s mixed-sex requirement for civil marriage was dispositive; the Court’s case law had evolved too much since then for that decision to answer the constitutional issues.  He rejected the claim that the constitutional right to marry (protected by the Due Process Clause of the Fourteenth Amendment) was only a right to marry a person of a different sex, but rather followed Loving v. Virginia and joined the many courts concluding that it was improper to build in the identities of the plaintiffs into the description of the right, which should be seen instead as the right to marry the person of one’s choice.  Pennsylvania’s law excluding same-sex couples from marriage infringed that rights and thus was unconstitutional for this reason as well, as was the state’s refusal to recognize marriages of same-sex couples validly entered in other jurisdictions.  And, like Judge McShane in the Geiger case, Judge Jones let his ruling go into effect already, so same-sex couples in Pennsylvania will be able to marry, as Oregon couples already are, as soon as a three-day waiting period between receiving a marriage license and being able to “solemnize” and thus legally enter a marriage.

With this pair of rulings, we have now seen nineteen court rulings in a row since the Supreme Court’s decision in U.S. v. Windsor last June holding in favor of marriage equality, and eight states have had their exclusionary marriage laws held unconstitutional in that time.  This unanimity of judicial opinion that the constitutional logic of equal protection, including in decisions like Windsor, establishes the unconstitutionality of bans on same-sex couples marrying bodes well for the chances of equality ultimately prevailing  when the Supreme Court next revisits the issue.

European Court Rules Civil Unions Cannot Exclude Same-Sex Couples

“We're still strivin' for the sky, no taste for humble pie”

In Case of Vallianatos and Others v. Greece, the European Court of Human Rights ruled by a vote of 16-to-1 on November 7, 2013, that Greece violated same-sex couples’ right to equality taken in conjunction with their right to respect for private and family life by excluding same-sex couples from the civil unions Greece adopted in 2008 for “de facto partnerships” of different-sex couples.  Each of the plaintiff couples was awarded 5000 Euros compensation for the non-monetary harms they suffered from the discriminatory exclusion.

The Greek civil unions law was enacted to provide a more flexible legal framework than marriage for cohabiting couples and the children of those couples who were raising children.  Other than Lithuania, Greece is the only country in the Council of Europe to “provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).”

The Court reaffirmed that same-sex couples “are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Yet the civil unions law treats them differently based on their sexual orientation, the Court ruled.  (Thus far U.S. courts have largely recognized that marriage laws limited to different-sex couples embody sexual orientation discrimination, rejecting the shallow argument that they don’t because a gay man could marry a woman and a lesbian could marry a man.)   This sexual orientation discrimination required justification.  Greece chiefly relied on asserted interests in the protection of non-marital children and “strengthening the institutions of marriage and the family in the traditional sense.”  While the Court accepted that protecting “family in the traditional sense” was a legitimate aim, the sexual orientation discrimination in the law meant that the exclusion of same-sex couples from civil unions had to be “necessary” to serve those interests.

Looking at the actual provisions of the civil unions law, the Court concluded that it “was primarily aimed” not at regulating child-rearing but “at affording legal recognition to a new form of non-marital partnership.”  For example, different-sex couples could enter civil unions regardless of whether they had children.  Same-sex couples, in contrast, had no options under Greek law for having their relationship legally recognized.  This conflicted with an emerging trend in the law of European Union member countries, nine of which allowed same-sex couples to marry civilly and seventeen of which provided for “some form of civil partnership for same-sex couples.”

Judge Paulo Pinto de Albuquerque, a member of the Faculty of Law of the Catholic University of Portugal, dissented in part because he believed the same-sex couples should have been required to “exhaust their remedies” by first presenting their claims to the courts of Greece.