FedSoc Blog

Do the Arguments for Same-Sex Marriage Undermine Affirmative Action?


by Publius
Posted December 14, 2012, 10:41 AM

Writing for Slate, Richard  D. Kahlenberg supports same-sex marriage but rejects affirmative action for the same reasons:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability. 

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated. 

For centuries, marriage was synonymous with heterosexual union, but as science has come to understand homosexuality as an inborn trait, the basic argument for marriage equality and nondiscrimination has grown more powerful. Along with these insights has come a stunning shift in public opinion on gay marriage. In 1996, Americans opposed gay marriage by 2:1, but today, supporters outnumber opponents by 50 percent to 45 percent and the trend line is clear. The biggest opponents of gay marriage—old people—are dying every year, while younger people (including many young evangelicals) see same-sex marriage as a nonissue. Just as opposition to racial intermarriage waned over time, we are witnessing the slow death of anti-gay marriage sentiments.

Both these arguments may prove persuasive to Justice Kennedy—and analogous arguments may also lead him to significantly curtail racial preferences. Since the adoption of racial affirmative-action programs in college admissions in the late 1960s, a majority of Americans have consistently felt uncomfortable with the idea of using an innate factor like race in deciding who gets ahead—even for the positive goal of integrating selective colleges.

Unlike gay marriage, there has been no shift in the public opinion of young people in favor of affirmative action. In a 2012 survey, millennials (aged 18-25) opposed racial preferences to promote diversity by 57 percent to 28 percent, according to the Berkeley Center for Religion, Peace, and World Affairs at Georgetown University and the Public Religion Research Institute. Only 9 percent of young Americans supported racial preferences to make up for past discrimination, once the central moral rationale for the policy. Even at the famously liberal Brown University, a recent poll found that students opposed the university’s considering race in admissions by 58 to 34 percent.

Racial preferences have survived until now because supporters said they were temporary and that there was no other means to produce racial diversity in our colleges short of using race. In the 1978 Bakke case, for example, Justice Harry Blackmun said it was not possible to find a race-neutral way of producing racial diversity in college admissions.  “There is no other way,” except by using race, he suggested.

Today, however, racial discrimination, while by no means conquered, does not play the same role in American life that it did three or four decades ago. . . .

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