The race issue, Kennedy said, is not so sensitive that it cannot be made the topic of political conversation and submitted to a referendum of the voters.I see so many things wrong with that statement. Yes, I'm saying a Supreme Court justice got it wrong (and it won't be the first or last time). At a time when so many people are freaking out about a black president Anthony Kennedy is saying race relations are not sensitive? And when have we had an intelligent political conversation about race? Certainly the GOP hasn't had that conversation since Richard Nixon pulled his Southern Strategy to win the presidency. And that bit about "submitted to a referendum of the voters" sounds like an endorsement of tyranny of the majority.
I'll let other legal minds ponder the racial and policy implications, such as this one that debates whether affirmative action is about upholding diversity or is reparative justice. I have a different burning question to ask.
If it is permissible for voters to ban racial preferences is it also permissible for voters to ban same-sex marriage?
Have the Supremes given us a hint on how they might rule in a marriage equality case when it gets to them? Bases on the rulings last summer court after court has been saying marriage is a fundamental right and using that as a basis to confirm same-sex marriage. So is education not a fundamental right? Did we miss something about the Constitution's inclusive language and now find it applies to sexual minorities and not racial minorities (and I'm very aware lots of people try to claim the Constitution indeed does not cover racial minorities -- and apparently a few justices do too). Are these two cases different? If so, in what way?
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