[EL] Why Does J. Kennedy Leave Affirmative Action, But Not Gay Rights, to the Democratic Process?

[Rick Hasen]

    Why Does J. Kennedy Leave Affirmative Action, But Not Gay Rights, to
    the Democratic Process? <http://electionlawblog.org/?p=73793>

Posted onJune 26, 2015 8:46 am 
<http://electionlawblog.org/?p=73793>byRick Hasen 
<http://electionlawblog.org/?author=3>

Today is a day to celebrate the right to same sex marriage recognized by 
the Supreme Court in its 5-4 decision inObergefell v. Hodges 
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>. It is a 
remarkable achievement considering where the country was two decades, 
and one decade ago. But the majority opinion leaves open many questions, 
and I want to look at one in this post: Why did the Court reject the 
democratic process argument, but accept it in the /Schuette /case?

The majority opinion recognizes the right to same sex marriage as a 
fundamental right under the due process clause, as well as protected by 
the equal protection clause (although that argument is much less 
developed).  The main response of the chief dissent coming from Chief 
Justice Roberts is a political process objection: this is an issue that 
should be decided by the states and the democratic process, and not by 
unelected federal judges. Roberts goes so far as to analogize the 
decision to recognize this fundamental right to the /Lochner/ era. Here 
is a key passage from Roberts:

    Those who founded our country would not recognize the majority’s
    conception of the judicial role. They after all risked their lives
    and fortunes for the precious right togovern themselves. They would
    never have imaginedyielding that right on a question of social
    policy to unaccountable and unelected judges. And they certainly
    wouldnot have been satisfied by a system empowering judges to
    override policy judgments so long as they do so after “a quite
    extensive discussion.”/Ante/, at 8. In our democracy,debate about
    the content of the law is not an exhaustion requirement to be
    checked off before courts can impose their will. “Surely the
    Constitution does not put either the legislative branch or the
    executive branch in the position of a television quiz show
    contestant so that when a given period of time has elapsed and a
    problem remains unresolved by them, the federal judiciary may press
    a buzzer and take its turn at fashioning a solution.” Rehnquist,The
    Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). As
    a plurality of this Court explained just lastyear, “It is demeaning
    to the democratic process to presume that voters are not capable of
    deciding an issue of this sensitivity on decent and rational
    grounds.”/Schuette /v./BAMN/, 572 U. S. ___, ___ –___ (2014) (slip
    op., at 16– 17).

/Schuette 
<http://www.supremecourt.gov/opinions/13pdf/12-682_8759.pdf>/was a case 
in which the Court upheld a Michigan law barring affirmative action in 
education. Here is how Justice Kennedy, in the plurality opinion put the 
question before the Court there: “The question here concerns not the 
permissibility of race-conscious admissions policies under the 
Constitution but whether, and in what manner, voters in the States may 
choose to prohibit the consideration of racial preferences in 
governmental decisions, in particular with respect to school admissions.”

Kennedy’s answer was that the question of affirmative action was to be 
left to the people themselves:

    Here Michigan voters acted in concert and statewide to seek
    consensus and adopt a policy on a difficult subject against a
    historical background of race in America that has been a source of
    tragedy and persisting injustice. That history demands that we
    continue to learn, to listen, and to remain open to new approaches
    if we are to aspire always to a constitutional order in which all
    persons are treated with fairness and equal dignity.*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

In /Obergefell/, Justice Kennedy purported to distinguish /Schuette/and 
to respond to CJ Roberts’ citation of it in his dissent:

Of course, the Constitution contemplates that democracy is the 
appropriate process for change, so long as that process does not abridge 
fundamental rights. Last Term, a plurality of this Court reaffirmed the 
importance of the democratic principle in/Schuette/v./BAMN/, 572 U. S. 
___ (2014), noting the “right of citizens to debate so they canlearn and 
decide and then, through the political process,act in concert to try to 
shape the course of their own times.”/Id./, at ___ – ___ (slip op., at 
15–16). Indeed, it is most often through democracy that liberty is 
preserved and protected in our lives. But as/Schuette/also said, “[t]he 
freedom secured by the Constitution consists, in oneof its essential 
dimensions, of the right of the individualnot to be injured by the 
unlawful exercise of governmental power.”/Id.,/at ___ (slip op., at 15). 
Thus, when the rightsof persons are violated, “the Constitution requires 
redress by the courts,” notwithstanding the more general value of 
democratic decisionmaking./Id.,/at ___ (slip op., at 17).This holds true 
even when protecting individual rightsaffects issues of the utmost 
importance and sensitivity.

    The dynamic of our constitutional system is that individuals need
    not await legislative action before asserting a fundamental right.
    The Nation’s courts are open to injured individuals who come to them
    to vindicate their owndirect, personal stake in our basic charter.
    An individual can invoke a right to constitutional protection when
    he or she is harmed, even if the broader public disagrees and even
    if the legislature refuses to act. The idea of the Constitution “was
    to withdraw certain subjects from the vicissitudes of political
    controversy, to place them beyondthe reach of majorities and
    officials and to establish themas legal principles to be applied by
    the courts.”/West Virginia Bd. of Ed./v./Barnette/, 319 U. S. 624,
    638 (1943).This is why “fundamental rights may not be submitted to a
    vote; they depend on the outcome of no elections.”/Ibid.**/*It is of
    no moment whether advocates of same-sex marriage now enjoy or lack
    momentum in the democratic process. The issue before the Court here
    is the legal question whether the Constitution protects the right of
    same-sex couples to marry.*

(My emphasis.)

So why the different treatment? Why trust the voters in one area but not 
the other? The answer seems to lie in the psychology of Justice Kennedy. 
He is skeptical of race-based preferences but not of gay rights. Indeed, 
it looks like all the other Justices on the Court are more consistent in 
their approaches to these questions than Kennedy. He is the only one who 
voted with the majority in both /Schuette/and /Obergefell./When to trust 
the voters? When they are likely to vote with Justice Kennedy.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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