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Will Justice Kennedy Defend Marriage Equality and Outlaw Affirmative Action -- With One Stroke?

12/10/2012 12:28 pm ET | Updated Feb 09, 2013
  • Jedediah Purdy Professor, Duke Law School; Author, 'A Tolerable Anarchy'

With both gay marriage and a challenge to affirmative action on its agenda, the Supreme Court will weigh in on two of the most charged issues. Progressives are full of nervous excitement about the marriage cases and just plain nervous about affirmative action.

Consider this unsettling possibility. Suppose the Court strikes down affirmative action and defends marriage equality on the same principle: that the Constitution requires deep respect for individual identity. Then liberals who regarded the two judgments as a split decision would have to think very hard about what they want constitutional equality to mean.

The scenario is pretty simple. It starts with a tediously familiar premise. Justice Anthony Kennedy is all but certain to cast the deciding vote on affirmative action and, if the marriage case is close, on it as well. Four justices are dead-set against affirmative action, while another four believe it is constitutional. We know less about the marriage issue because it is newer and less tested, but there are probably four liberal votes for at least some measure of marriage equality, and it would be a real surprise if any conservative other than Kennedy went there.

The issue about affirmative action is whether the Constitution's rule that government must treat people equally (the actual phrase prohibits "deny[ing] equal protection of the laws"), outlaws affirmative action. The theory is that affirmative action treats people unequally by establishing different standards depending on race. The moral idea behind the argument is that race is an unconstitutional basis for different treatment, regardless of whether the particular law in question benefits whites or minorities. This is often called the "color-blind" theory of the Constitution because it would forbid government to "see" race.

Four conservative justices almost certainly embrace the color-blind theory. Four liberals almost certainly reject it. Kennedy has not quite embraced it, but he has come close, and in a 2007 case, Parents Involved, addressing race-conscious assignment in public schools, he explained why: "To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society." Kennedy also wrote, "Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake."

Kennedy's argument is not really about equality, at least not as "equality" worked in anti-segregation cases like Brown v. Board of Education. Those cases assumed race was a social reality, something people had to live with, and forbade government to treat people unequally because of their race - which, in practice, governments did only in discriminating against minorities. The problem for conservatives has always been that affirmative action, a policy that treats people differently to benefit minorities, does not obviously cause or reinforce inequality, as old-fashioned segregation did. But if racial classification offends individuality, if government violates a person's dignity by treating her as a member of a racial group at all, then segregation and affirmative action really do look like two sides of the same coin. If Kennedy uses this theory to anchor a fifth vote holding affirmative action unconstitutional, then "equality" will mean color-blindness to support a version of individual dignity.

Now consider marriage. Kennedy has twice written ground-breaking opinions supporting gay rights. In 2003's Lawrence v. Texas, invalidating Texas's sodomy ban, he wrote that such bans offended the "dignity as free persons" and "demean[ed] the lives of homosexual persons." Sexuality, he wrote, is part of the way that people work out their identities and the meaning of their lives, and outlawing consensual adult intimacy was an attempt by the government to "demean their existence [and] control their destiny." That the government could not do.

Lawrence was about the principle of constitutional liberty, while Parents Involved, like the current affirmative-action case, is about the meaning of equality. Traditionally, these are separate lines of argument, each governing its own set of cases. In Lawrence, though, Kennedy explicitly linked them, saying that protecting the liberty he described there is inseparable from ensuring citizens' equality: both principles protect the dignity of individuals. His argument in Parents Involved also brought the two principles together, saying, in effect, that part of equality is respect for individuality, and that classifying people by race, like criminalizing their sexual activity, is an unconstitutional attempt to control their destiny.

The main arguments for marriage equality are - as the term suggests - based on the equality principle, the argument being that denying gay marriage treats same-sex couples differently in an unconstitutional way. If Kennedy embraces that argument, it is likely to be with the language of individuality, dignity, and self-definition that has already brought liberty and equality closer together as constitutional principles. If he writes an opinion declaring university affirmative action unconstitutional, it will likely be with the same language.

In other words, the idea that the Constitution, at its core, protects individual freedom to define one's own personality, may well hand liberals a big win and a big loss, all at once. Then they will have to decide what they think of that principle.

The clear appeal of the individuality principle is that both race and sex have become far more subtle and complicated in recent decades, and that attempts to regulate around them are often clumsy and - especially in the case of sexual identity - cruel. Its cost is that, by equating affirmative action with segregation and bigotry, it would take away an important tool for addressing deep-seated economic and educational inequality. Declaring the constitution color-blind would mean, in effect, also saying that it requires blindness to the real economic differences that can set black and white lives on such different paths.

This is not the only way the question of equality could take shape. Liberal justices think the equality principle allows affirmative action but, probably, supports at least some move toward protecting gay marriage. Conservatives think it prohibits affirmative action but has no bearing on marriage equality.

But what the fifth justice writes, though, goes a long way toward defining the alternatives and the public debate around these ideals. Justice Kennedy's jurisprudence may tie the country more closely than ever to the dilemma of libertarianism: it protects individual dignity and autonomy against government intrusion, but it also leaves people free to fail, in circumstances they did not choose and were powerless to change. The autonomy it protects is both a precious moral principle and a pernicious lie. In an increasingly libertarian age, with a romantic libertarian at the center of the Supreme Court, the dilemma may define the next generation of the American search for equal citizenship.