Michigan Attorney General Bill Schuette uses the recent decision surrounding affirmative action to suggest that a voter approved ban on same-sex marriage should be upheld. He cites:
“As Justice Kennedy recently explained, (in the affirmative action case) “[i]t is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” Schuette wrote in his appeal of a ruling in March by U.S. District Judge Bernard Friedman that Michigan’s ban on same-sex marriage is unconstitutional violation of equal protection rights. “Democracy does not presume that some subjects are either too divisive or too profound for public debate.”
The case doesn’t revolve around approving or disapproving of same-sex relationships or a gay couple’s ability to raise a child, Schuette said in the appeal brief.
But he is thoroughly wrong. The very notion of the state ban was every bit about disapproving of same-sex relationships or at the very least relegating them to second class citizenship. He suggests that the people may by vote grant special rights to some people while denying those rights to others irregardless of what the Constitution says. In other words, he asks that the right of a few voters- those who voted for the ban- as deserving of greater respect than the Constitution which guides and protects the whole of us.
Like many conservatives who seek to limit the rights of minorities- in this case gay and lesbian people- he reduces “democracy” to a process of voting at the ballot box. But the democratic process also includes the US Constitution, the right to due process and equal protection.
There are a number of ways that these two cases are also extremely different. Most notably, the affirmative action voter approved issue bans preferential treatment. The same-sex marriage issue bans equal treatment. Hardly alike. While I personally disagree with the Supreme Courts decision, I do grasp their reasoning. Affirmative action and preferential treatment for minorities in college admissions was seen as a way to fix the racial disparities caused by decades and decades of social injustice and economic inequality. The same-sex marriage ban was totally about maintaining the status quo and limiting the legal rights of gay and lesbian couples. The same-sex marriage ban is more similar to that which cause the need for affirmative action than to the vote to prohibit preferential treatment.
Working on this post got me wondering: will the US Supreme Court’s decision regarding affirmative action, Schuette v BAMN, become the Dred Scott decision of this century? A valid question worth pursuing in another blog post.