Supreme Court Double Header: The Arguments for Gay Marriage Undermine Affirmative Action

The law, lawyers, and the court.
Dec. 13 2012 3:02 PM

The Arguments for Gay Marriage Undermine Affirmative Action

Here’s how Justice Kennedy could vote to recognize same-sex unions and scrap racial preferences.

Chris, right, and Renee Wiley pose for a wedding photo on Times Square in New York.
Chris, right, and Renee Wiley pose for a wedding photo in Times Square

Photograph by Emmanuel Dunand/AFP/Getty Images.

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability. 

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated. 

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For centuries, marriage was synonymous with heterosexual union, but as science has come to understand homosexuality as an inborn trait, the basic argument for marriage equality and nondiscrimination has grown more powerful. Along with these insights has come a stunning shift in public opinion on gay marriage. In 1996, Americans opposed gay marriage by 2:1, but today, supporters outnumber opponents by 50 percent to 45 percent and the trend line is clear. The biggest opponents of gay marriage—old people—are dying every year, while younger people (including many young evangelicals) see same-sex marriage as a nonissue. Just as opposition to racial intermarriage waned over time, we are witnessing the slow death of anti-gay marriage sentiments.

Both these arguments may prove persuasive to Justice Kennedy—and analogous arguments may also lead him to significantly curtail racial preferences. Since the adoption of racial affirmative-action programs in college admissions in the late 1960s, a majority of Americans have consistently felt uncomfortable with the idea of using an innate factor like race in deciding who gets ahead—even for the positive goal of integrating selective colleges.

Unlike gay marriage, there has been no shift in the public opinion of young people in favor of affirmative action. In a 2012 survey, millennials (aged 18-25) opposed racial preferences to promote diversity by 57 percent to 28 percent, according to the Berkeley Center for Religion, Peace, and World Affairs at Georgetown University and the Public Religion Research Institute. Only 9 percent of young Americans supported racial preferences to make up for past discrimination, once the central moral rationale for the policy. Even at the famously liberal Brown University, a recent poll found that students opposed the university’s considering race in admissions by 58 to 34 percent.

Racial preferences have survived until now because supporters said they were temporary and that there was no other means to produce racial diversity in our colleges short of using race. In the 1978 Bakke case, for example, Justice Harry Blackmun said it was not possible to find a race-neutral way of producing racial diversity in college admissions.  “There is no other way,” except by using race, he suggested.

Today, however, racial discrimination, while by no means conquered, does not play the same role in American life that it did three or four decades ago. Meanwhile, inequalities by economic status have grown dramatically. For example, whereas the racial achievement gap between black and white students used to be twice as large as the income achievement gap, Stanford researchers have found that today the income achievement gap is twice as large as the racial achievement gap. Class-blind racial preferences that benefit advantaged students of color ignore these changing realities.

Given the growing economic divide, it’s not surprising that in almost all cases where universities have dropped the use of race in admissions—usually because of a public referendum—they have adopted new programs to give a preference to socioeconomically disadvantaged students of all races. And Blackmun’s contention that race-neutral alternatives won’t produce racial diversity is no longer true. In a study I co-authored for the Century Foundation, we found that of 10 leading public universities that stopped using racial preferences, seven (including the University of Washington and the University of Florida) were able to maintain or exceed the proportion of black and Latino students with race-neutral alternatives. The three exceptions—U.C. Berkeley, UCLA, and the University of Michigan—are all highly selective institutions that draw on a national student population and are at a disadvantage in recruiting students of color because competitors, like Stanford for the California schools, can continue to use racial preferences.

If universities employ income as the sole proxy for class, it’s true that they will see declines in racial diversity, because discrimination continues to create significant differences, in the aggregate, between black and white poverty. Racial discrimination in the housing market, for example, helps explain why low-income blacks are much more likely to live in neighborhoods of concentrated poverty than whites of similar income.  And our history of slavery and segregation has made it harder for blacks to accumulate assets over generations, which helps explain why black Americans make 60 percent of what white Americans make in income on average but have just 5 percent of the wealth that whites have. As a result, it’s crucial for class-based affirmative action programs to account for concentrated poverty and wealth—not just income—in order to be fair, and to produce greater levels of racial diversity.

Here’s another reason why socioeconomic affirmative action that considers wealth is a better fit for the future than race-based policies: America is slated to become a majority minority nation by midcentury, and several states have already crossed that threshold. This is significant because the Supreme Court has long held that the 14th Amendment’s guarantee of equal protection under the law is especially necessary to bar discrimination against “discrete and insular minorities.” So long as white voters are in clear control of American institutions, racial preferences in favor of underrepresented minorities trigger less legal concern. But in instances where minorities are a political majority, judges become more skeptical. In a 1989 case contesting Richmond, Va.’s racial set-aside in contracting, for example, the justices took note of the city’s 50 percent black population in striking down the program. As minorities gain in population and political power nationally, racial preferences are likely to come under increasing scrutiny from the courts. 

If the Supreme Court, guided by Justice Kennedy, supports gay marriage and curtails racial preferences, liberals will cheer one result and conservatives the other. But Kennedy could argue that he is being perfectly consistent, championing history’s slow march toward a requirement of equal treatment: for marriage equality in the first case and for racially neutral admissions in the second. So long as new forms of affirmative action are created—updated to reflect the growing problem of class inequality—Kennedy’s position would represent real-world equality of opportunity as well.

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