If it is permissible for voters to ban racial preferences is it also permissible for voters to ban same-sex marriage?The blog Box Turtle Bulletin works to disprove anti-gay claims. I refer to its postings frequently. One of the site's features is a Daily Agenda. It lists important items for the day (such as a court case) and discusses sexual minorities in history through birthdays and anniversaries of significant events. At the end of each day's Agenda writer Jim Burroway invites readers to tell him and co-authors what is on our minds.
So after posting the above question I also wrote a comment to the Daily Agenda asking the BTB crew what they thought of it. A couple authors replied, a few regular commenters did too.
Commenter jpeckjr sees a distinction -- marriage is a fundamental right (as several court cases repeat). A college education is not. Commenter Billy Glover sees no connection then reminds us that laws and court rulings frequently have unintended side effect.
BTB author Rob Tisinai says I'm not the only one to think of that question. He included a link to an article in the National Review pondering it. So, on to the article.
Michigan Attorney General Bill Scheutte is highly involved in the affirmative action (AA) case (his name is on it). He was also active in the marriage case decided in Michigan a month ago. And the Supremes, in the AA case, used similar language that Scheutte used in describing the marriage case. He said voters can be deliberative and reasonable when deciding big issues. Voters are not necessarily guided by animus when they make those deliberations (though I find those pushing to ban same-sex marriage and those pushing to end affirmative action are indeed guided by animus). Because voters are deliberate, courts should defer to voters. (Yeah, there is that tyranny of the majority thing, but so many like Scheutte, and maybe a few of the Supremes, pretend that doesn't exist.)
Will the ruling in the AA case shape the marriage case? We won't know how the Supremes view that relationship until a marriage case gets to them. But many Circuit judges write their opinions trying to please the justices or at least knowing the justices might review their work. And we'll know real soon if the AA case influences their decisions. The 10th Circuit has heard the Oklahoma and Utah cases but has not yet issued an opinion. There is still time for those judges to consider what the Supremes wrote.
And you can be sure Bill Scheutte's fingers are typing as fast as they can to write an amendment to his filing of the Michigan marriage case with the 6th Circuit. He will (at least figuratively) wave the AA ruling in front of the judge's noses and say, "See what the Supremes said about voter approved bans!"
My question wasn't so idle or hypothetical.