Last week, the Supreme Court agreed to review a decision of the U.S. Court of Appeals for the Sixth Circuit in Schuette v. Coalition to Defend Affirmative Action. The case concerns a provision of the Michigan state constitution that forbids race, sex, and national origin preferences in state public higher education, employment, and contracting. It was enacted in 2006 by a ballot initiative known as Proposal 2, but was struck down as a violation of the Equal Protection Clause of the federal Constitution by the appeals court in 2011.
The Michigan case presents a superficially easy question: The Supreme Court has held that state actors are rarely even permitted to engage in race-based affirmative action. So how can a state ballot initiative forbidding such affirmative action be unconstitutional, as the court of appeals held?
Scratch the surface, though, and you will find that the Michigan case is more complicated. As explained by Professor Vikram Amar in two prior Verdict columns (here and here), the appeals court relied on two Supreme Court precedents—the 1969 case of Hunter v. Erickson and the 1982 case of Washington v. Seattle School Dist. No. 1—which together establish limits on how a state or local government may go about eliminating or preventing the enactment of laws that benefit racial minorities.
The Seattle case illustrates the general principle. The city school district had adopted a student busing plan to combat de facto racial school segregation, but the voters of Washington then amended the state constitution to ban such plans. Even though Washington and Seattle had no constitutional obligation to use busing to combat de facto (as opposed to de jure) segregation in the first place, the Supreme Court nonetheless held that removing the issue from the ordinary political process worked an impermissible disadvantage on the state’s minority citizens.
Likewise, in the recent Michigan case, the Sixth Circuit said that even though the state of Michigan had no obligation to employ race-based affirmative action, by removing the matter from the ordinary political process, Proposal 2 had violated the Hunter/Seattle principle.
As Professor Amar explained, the appeals court opinion makes sense as an application of the Hunter/Seattle principle. The question now is whether the Supreme Court will continue to adhere to that principle. As I shall explain in the balance of this column, decisions in several currently pending cases could play an important role in resolving that question.
When Is It Worse to Take a Right Away Than Not to Confer It in the First Place?
Michigan’s Proposal 2 did not come out of nowhere. It was partly a response to the Supreme Court’s ruling in Grutter v. Bollinger, which upheld the limited use of race-based affirmative action by the University of Michigan Law School. Might that fact be constitutionally significant?
In both Hunter and Seattle School Dist. No. 1, there was also a substantial change in the law that disadvantaged minorities. Is there some constitutional principle that limits the ability of state and local governments to grant and then take away rights? That issue is now before the Court in another high-profile case.
Last week, the Supreme Court heard oral argument in Hollingsworth v. Perry, a challenge to California’s Proposition 8, banning same-sex marriage. The U.S. Court of Appeals for the Ninth Circuit struck down Prop 8, without deciding whether the Constitution protects a right of same-sex marriage in all states. Instead, the appeals court rested its ruling on the narrower ground that California could not grant the right to same-sex marriage—as it had done through a state supreme court ruling—and then take it away.
Why not? Certainly, there is no general constitutional rule that forbids states from changing their laws. Nonetheless, according to the Ninth Circuit opinion authored by Judge Stephen Reinhardt, the fact that California took away a previously granted right was important in evaluating the interest that the state advanced to support Prop 8.
The defenders of Prop 8 argued that California, like other states, permitted only opposite-sex couples to marry because only opposite-sex couples can accidentally procreate. But Judge Reinhardt said that even if that could count as a legitimate reason why California had not originally included same-sex couples in the class of people who could marry, it was not a rational reason for taking away the right to marry from same-sex couples, once the right had been extended to them. Hence, Judge Reinhardt reasoned, a concern about accidental procreation could not have been the real reason why California voters passed Prop 8. The appeals court combined that inference with evidence of the anti-gay rhetoric that was part of the campaign in favor of Prop 8, in order to support its conclusion that Prop 8 was the product of constitutionally impermissible “animus” (defined in the case law as roughly synonymous with prejudice or sometimes even hatred).
During last week’s oral argument in Perry, Chief Justice John Roberts expressed skepticism about the Ninth Circuit’s rationale. He thought that it was unfair to regard Prop 8 as taking away a right to same-sex marriage because the voters of California had never granted such a right in the first place. The campaign to place Prop 8 on the ballot began before the California Supreme Court decision legalizing same-sex marriage, he noted.
But, so what? Whether or not Prop 8 should be understood as taking away a previously established right, there is a constitutionally important difference between failing to include same-sex couples in the institution of marriage and affirmatively banning their inclusion. An affirmative ban like Prop 8 cannot be dismissed as a mere oversight; it instead suggests animus.
The difficulty with that response to the Chief Justice’s argument, however, is that it may be too successful. Judge Reinhardt appeared to have come up with the distinction between not granting a right and taking a right away as a means of striking down Prop 8 on California-only grounds. However, if the Supreme Court were to say that the core distinction is between not granting a right and affirmatively denying the right, then that principle has wide application. Since 1998, more than half of the states in the Union have enacted measures affirmatively banning same-sex marriage.
Accordingly, the “animus” rationale does not look like a narrow basis for invalidating Prop 8. If Prop 8 reflects impermissible anti-gay animus, then so does the Defense of Marriage Act (DOMA), which was considered last week in the Windsor case. And perhaps more consequentially, so do same-sex marriage bans in most states. Although I personally am comfortable with the conclusion that all of these restrictions on same-sex marriage are unconstitutional, it appears that a majority of the Justices are not there yet.
Could Hunter/Seattle Be Transformed Into a Motive Test?
If the animus rationale is unavailable as a means for deciding the Prop 8 case on narrow grounds, might it nonetheless provide a way for the Supreme Court to reimagine the Hunter/Seattle principle that is at issue in the Michigan affirmative action case? Another gay rights case suggests the possibility of taking this path.
In the 1996 case of Romer v. Evans, the Supreme Court invalidated a Colorado constitutional amendment that forbade state and local governments in that state from enacting laws protecting gays and lesbians from discrimination based on sexual orientation. The Colorado Supreme Court invalidated the state constitutional amendment by invoking the Hunter/Seattle principle, but the U.S. Supreme Court adopted a somewhat different rationale. No doubt recognizing that Hunter/Seattle had theretofore been limited to cases involving race, the Court instead fitted the Colorado amendment into a different line of cases that rejects animus as an illegitimate basis for any laws.
Since Romer, it may be tempting to think that the Hunter/Seattle doctrine itself is best understood as in some sense really being about animus. To be sure, the Supreme Court itself, in those cases, expressly rejected the suggestion that it was applying a motive test, but the Court has offered new rationales for old decisions before, even when those new rationales have contradicted what the Court had previously said on the matter at hand.
What would happen in the Michigan case if the Court were to reconceptualize the Hunter/Seattle principle as targeting animus? I suspect that the appeals court ruling would be reversed.
The core difficulty for the challengers to Michigan’s Proposal 2 is that a majority of the current Supreme Court would not view a state constitutional ban on affirmative action as reflecting animus. Indeed, as was confirmed by the oral argument last October in the still-pending case of Fisher v. Univ. of Texas, the conservative Justices on the Supreme Court themselves are highly suspicious of nearly any race-based affirmative action. It is not likely that they will say that the voters of Michigan acted out of animus when they adopted Proposal 2 based on the same sorts of suspicions.
Could the Court Relegate Hunter/Seattle to the Dustbin of History?
The Supreme Court may not be willing to say that Hunter and Seattle School Dist. No. 1 should now be reimagined as precursors to the anti-animus principle of Romer v. Evans for a simple, practical reason: The Justices most likely to want to narrow the Hunter/Seattle principle are the Court’s conservatives, but with the exception of Justice Anthony Kennedy, who authored Romer, the conservative Justices do not support Romer’s anti-animus principle.
Is there some other way that the Court’s conservatives might limit Hunter/Seattle so that they can then uphold Michigan’s Proposal 2? We may find the answer in yet another pending case, Shelby County v. Holder. That case presents the question of whether Section 5 of the Voting Rights Act (VRA)—which requires certain jurisdictions with a history of race discrimination in voting to “pre-clear” changes to their electoral laws—is constitutional. During the oral argument in the case, the conservative Justices indicated that while Section 5 of the VRA may have been valid when it was first enacted in 1965, the ensuing diminution in racial prejudice makes the law no longer necessary, and thus no longer constitutional.
One can readily imagine the Court’s conservative majority taking a similar position with respect to the Hunter/Seattle principle. In this view, the Hunter and Seattle cases reflect an outdated suspicion of laws restricting race-based remedies. In the decades immediately following the Civil Rights Movement, such suspicion was warranted, but, the argument would go, today there is no longer any reason to worry about state provisions that make it more difficult for minority voters to adopt measures that benefit them.
On this point, I want to be clear that I do not share the conservatives’ view that we are living in a post-racial America. I also do not share the view that Chief Justice Roberts expressed last week during the DOMA oral argument, namely that recent political gains for the cause of same-sex marriage mean that LGBT Americans no longer need judicial protection against discrimination.
My personal views are beside the point, however. The question is what five Justices will likely say, and it is hard to shake the impression that the Court will find a way around Hunter and Seattle School Dist. No. 1. I began this column by describing the Michigan Proposal 2 case as posing a superficially easy question. In the end, I suspect that the Court’s conservative majority will think the case is easy through and through.