Men in Black (11 page)

Despite the opinion, the Massachusetts legislature was not deterred. It went ahead with a constitutional convention. It passed the civil union law and an amendment to the state constitution banning same-sex marriage, but the earliest it will appear on the ballot for ratification is 2006.

Nevertheless, shortly after midnight on May 17, 2004—the end of the court’s deadline to institute gay marriage—municipal clerks began handing out marriage licenses to same-sex couples in Massachusetts. As the Associated Press reported, “As of Monday, Massachusetts joins the Netherlands, Belgium, and Canada’s three most populous provinces as the only places worldwide where gays can marry.”
⁵⁴

Four of seven justices of the Supreme Judicial Court of Massachusetts—with the stroke of a pen—abolished hundreds of years of tradition and law over the strong objections of the legislature. And as these activist justices undoubtedly intended, their ruling will have consequences well beyond their jurisdiction and Massachusetts’s borders.

Unfortunately, without federal intervention, the prospect of one state imposing gay marriage on other states is quite real. The Constitution requires each state to honor a sister state’s public acts and judgments under the full faith and credit clause.
⁵⁵
If a gay couple marries in Massachusetts, what prevents them from moving to Alabama and demanding that their marriage be recognized there? The existing legal impediments to gay marriage nationally can be easily circumvented.

For example, in 1996 Congress overwhelmingly passed the federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton. Congress acted because of rumblings that Hawaii’s state courts were going to recognize a constitutional right to gay marriage. The DOMA states, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
⁵⁶
In essence, a state does not have to honor a same-sex marriage performed in a sister state.

Thirty-nine states have also passed equivalent versions of the DOMA, thereby refusing to recognize gay marriages performed elsewhere.
⁵⁷
In August 2004, Missouri became the fifth state to pass an amendment to its state constitution banning gay marriage.
⁵⁸
There are more constitutional amendment efforts under way in numerous other states.

The possibility also exists that a state could argue, if challenged in court, that the recognition of gay marriage is not compelled by the full faith and credit clause because it goes against the “public policy” of the objecting state. Even heterosexual marriages have not been uniformly enforced in the United States. For example, the age of consent differs among the states, so some states declare a marriage from a sister state invalid if a spouse is too young.
⁵⁹

Yet all these legal obstacles to gay marriage will crumble before an activist U.S. Supreme Court. The U.S. Constitution is the highest law in the land, and the Court routinely strikes down state and federal law, and even state constitutional provisions, by invoking the federal Constitution. Given the Supreme Court’s rulings in
Lawrence
and
Romer
, a homosexual couple could plausibly argue that denying recognition of their marriage would be a violation of the Fourteenth Amendment’s equal protection clause. In fact, “equality under the law” was the cornerstone of the Massachusetts court’s ruling.

There are essentially two options available to the elected branches of government to prevent the judiciary from seizing the ultimate authority to define marriage—to amend the federal Constitution, or for Congress to pass a law denying the federal courts jurisdiction to rule on this subject.
⁶⁰

A federal marriage amendment was put forth by Senator Wayne Allard and Representative Marilyn Musgrave, both Colorado Republicans. It stated: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”
⁶¹

In February 2004, President Bush called for a constitutional amendment to protect traditional marriage. He noted that “some activist judges and local officials have made an aggressive attempt to redefine marriage.”
⁶²
Although he did not specifically mention it, he announced his support for an amendment that followed the Musgrave/Allard approach.
⁶³

A primary criticism of this approach, however, is that it violates the principles of federalism by defining marriage for the states. Senator John McCain, among others, said it was “antithetical in every way to the core philosophy of Republicans.”
⁶⁴
The procedure for amending the Constitution, however, apart from holding a constitutional convention, which no one endorses, requires the vote of two-thirds of both houses of Congress and then ratification by three-fourths of the states. The amendment process itself—involving all state legislatures and requiring a super-majority for passage—
is
federalism.
⁶⁵

On July 14, 2004, the Senate voted 50–48 against a procedural motion to bring the federal marriage amendment to the floor for a vote.
⁶⁶
A week later, House Republicans tried the alternative approach: limiting the Court’s jurisdiction to rule on marriage. Representative John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip jurisdiction from all federal courts over the Defense of Marriage Act. The bill passed 233–194.
⁶⁷

House Minority Leader Nancy Pelosi of California derided the measure, citing
Marbury v. Madison
for the proposition that the judiciary has final say over the constitutionality of congressional acts. She said, “Subsequent decisions and the court’s role as an equal branch strongly suggest that Congress cannot prohibit the court from determining the validity of a law in the first place.”
⁶⁸
Hostettler countered, “Anyone [who] actually reads the Constitution and has a basic understanding of grammar and the English language in general can find the fact that the Constitution grants the Congress the authority.”
⁶⁹

For now, the issue is stalled. Not a single state legislature has recognized homosexual marriage, and most states have taken steps to defend themselves against activist courts that would impose it. This issue, like few others, will determine whether Congress has the will finally to defend its constitutional role as the public’s federal representative body.

“You guys have been practicing discrimination for years. Now it is our turn.”

Justice Thurgood Marshall
¹

“A
ffirmative action” has been around since the 1960s. In Executive Order 10925, President John Kennedy instructed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.” Several years later, President Lyndon Johnson issued Executive Order 11246, which required government contractors to take affirmative steps to “expand job opportunities for minorities.” President Richard Nixon went even further. He ordered federal agencies to set up a national Minority Business Enterprise contracting program.
²
In his autobiography, Nixon wrote, “A good job is as basic and important a civil right as a good education…. I felt that the plan [Labor Secretary] George Shultz devised, which would require such [affirmative] action by law, was both necessary and right. We would not impose quotas, but would require federal contractors to show affirmative action to meet the goals of increasing minority employment.”
³

The problem with affirmative action is that it invariably involves reverse discrimination. Discriminating against people because of their race is repugnant and unconstitutional. But remedying the wrong of past discrimination by inflicting new discrimination undermines the very principle of racial non-prejudice that is the professed goal of American law and public policy.

The
Bakke
Case

Starting in the late 1960s, educational institutions began to establish affirmative action programs designed to increase minority enrollment. The first Supreme Court decision to directly address affirmative action in education was the landmark 1978 case
Regents of the University of California v. Bakke
.
⁴
Bakke
involved the admissions program of the University of California at Davis’s medical school. Students applying to the school had to have a minimum 2.5 grade point average, and only one in six who met that minimum standard were invited for an interview. Applicants were given a total admission score that included their overall grade point average, grade point average in science courses, graded interview score, Medical College Admission Test (MCAT) scores, and other criteria, including letters of recommendation and extracurricular activities. In 1973, a perfect score was 500 points. In 1974, it was increased to 600 points.
⁵

There was, however, a special admissions program run by a separate admissions committee for minority group applicants, in which the 2.5 grade point average cutoff did not apply. When the medical class size was fifty, eight slots were reserved for minority candidates Both numbers were doubled in 1973.
⁶

Allan Bakke was a white male who applied to the medical school in 1973. His combined score was 468 out of 500. His application for admission was denied because it was late in the year and the admissions program had ruled that any candidates who scored below a 470 would not be accepted.
⁷

Bakke applied again the following year; this time, his application was early and his combined score was 549 out of 600. He was placed on the waiting list but ultimately rejected. In both years, candidates who had lower grade point averages, lower MCAT scores, and lower total combined scores than Bakke were admitted under the special admissions process.
⁸

The issue presented to the Supreme Court in
Bakke
was whether the special admissions program violated the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment prohibits all state discrimination based on race, without exception. The Court has ruled that the Fourteenth Amendment protects Celtic Irishmen,
⁹
Chinese,
¹⁰
Austrian resident aliens,
¹¹
Japanese,
¹²
and Mexican-Americans.
¹³
It has said that “Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.”
¹⁴
But what about Bakke, a white male who was denied admission to a state medical school because of a racially discriminatory policy? Wouldn’t the Fourteenth Amendment protect him?

Not necessarily, because over the years the Supreme Court has taken the clear language of the Fourteenth Amendment and twisted it into a pretzel. It has held that when a government entity makes a law that provides for a classification based on race, the law is subject to a type of judicial examination known as strict scrutiny. This is the highest level of scrutiny that a court can invoke when deciding whether a particular law is constitutional. In order to pass muster under a strict scrutiny analysis, such a law must be “narrowly tailored” to meet a “compelling government interest.”
¹⁵

Laws that are subject to the strict scrutiny standard are, in most cases, overturned because the burden falls on the government to show how and why the law serves a compelling state interest. California argued that its compelling state interest in the special admissions program was to (1) increase minority representation in medicine, (2) counter racial discrimination in society, (3) increase the number of doctors in minority areas, and (4) reap the educational benefits of a more ethnically diverse student body.

Justice Lewis Powell, who wrote the opinion for the majority of the Court, dismissed the first justification, because it was “discrimination for its own sake which is prohibited by the Constitution.”
¹⁶
As to the second point, Powell conceded that the state has a recognized interest in remedying past discrimination, but the “purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent [Mr. Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”
¹⁷

As for the argument that minority physicians would practice in communities that are underserved, Powell concluded that the state had not demonstrated “that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens.”
¹⁸

Powell, however, found California’s final argument persuasive, at least up to a point. He wrote that because promoting a diverse student body encourages “speculation, experiment and creation” it is a constitutionally permissible goal. But he wrote that diversity “encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
¹⁹

Powell decided that since the special admissions program focused solely on ethnic diversity, it actually hindered diversity and was, therefore, unconstitutional. He wrote:

Consequently, the Court outlawed racial quotas, or the setting aside of a certain number of classroom seats exclusively for minorities. But proponents of affirmative action won a partial victory nevertheless, because admissions programs could in the future use racial classifications if they are narrowly tailored and are one of several factors in the attainment of a diverse student body. Although California lost, affirmative action survived.

Bakke
would have significant and lasting consequences. Powell’s decision “served as the touchstone for constitutional analysis of race-conscious admission policies. Public and private universities across the Nation modeled their own admissions programs on Powell’s views.”
²¹

In 2003, the Supreme Court again took up the issue of affirmative action in education when it decided the cases of
Grutter v. Bollinger
and
Gratz v. Bollinger
.
²²
The cases involved admissions programs at the University of Michigan Law School and undergraduate school.

In
Grutter
, Barbara Grutter applied for admission to the law school. She had a 3.8 grade point average and a score of 161 out of 180 on the Law School Admission Test (LSAT). Grutter was initially placed on a waiting list for admission but her application was subsequently rejected. She challenged the law school’s admission policy, alleging that she was discriminated against because she was white.

The law school’s admissions procedures bore the stamp of the
Bakke
decision, referring “to the educational benefits that diversity is designed to produce.”
²³
The former dean of admissions “testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors.”
²⁴
He also “testified that at the height of the admissions season, he would frequently consult the so-called ‘daily reports’ that kept track of the racial and ethnic composition of the class.”
²⁵
He said he sought “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body.”
²⁶
Another former dean of law school admissions testified that there was “no number, percentage, or range of numbers or percentages” sought by the school to reach what it deemed a “critical mass” of minority students.
²⁷

Against this backdrop, Justice Sandra Day O’Connor, writing for a majority of the Supreme Court, concluded that “we endorse Justice Powell’s view [in
Bakke
] that student body diversity is a compelling state interest that can justify the use of race in university admissions.”
²⁸
O’Connor stated that the law school program was sufficiently tailored to survive a strict scrutiny analysis and wrote, “attaining a diverse student body is at the heart of the Law School’s proper institutional mission.”
²⁹
Diversity, according to O’Connor, “‘promotes cross-racial understanding,’ helps to break down racial stereotypes and ‘enables [students] to better understand persons of different races.’”
³⁰

O’Connor next examined whether the school’s policy was narrowly tailored to achieve the compelling interest. Unlike the “special admissions” program in
Bakke
, O’Connor concluded that the school’s admission policy was sufficiently tailored and did not operate as a quota system. The policy “is flexible enough to ensure that each applicant is evaluated as an individual and not in any way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
³¹
But she also placed a time constraint on “race conscious admission policies”:

O’Connor and the Supreme Court majority recommended “periodic reviews” in order to determine whether the race-conscious admission policy was still necessary in order to attain the goal of diversity.
³³

Of course, there’s nothing in the Fourteenth Amendment about different scrutiny tests, diversity, and all the other judicial creations designed to get around the clear prohibition against racial discrimination.

Diversity had never been a constitutional basis for government-sanctioned racial discrimination. As Justice Antonin Scalia stated in his dissent: