Affirmative Action and the Same-Sex Marriage Cases

The Supreme Court has agreed to hear cases this Term on oposite ends of the culture wars: Affirmative action (in Fisher v. Univerity of Texas) and same-sex marriage (in Hollingsworth v. Perry and United States v. Windsor). It seems to me that the structure of the constitutional debate in the two areas are similar in some interesting ways. In both contexts, the debate boils down to the scope of the equality principles found in the Equal Protection Clause. In both contexts, the challengers to the status quo argue that the state can’t treat people differently in the area of fundamental rights. It’s that simple: This is about marriage/racial equality. In both contexts, the defenders defend their institutional practices as allowable and sensible societal responses to difficult social problems. And in both contexts, public opinion is split nearly 50/50, with very passionate opinions on both sides.

The similarities are particularly interesting because few people have the same instinctive reaction to both cases. For the most part, the standard conservative reaction is to see affirmative action programs at state schools as unconstitutional while laws limiting marriage to opposite-sex couples is constitutionally fine. On the other hand, the standard liberal action is to see affirmative action programs at state schools as constitutional while laws limiting marriage to opposite-sex couples are not. That’s a predicable reaction given the political valence of the issues. As often happens in constitutional law, advocates on both sides tend to believe that the Constitution embraces what they personally see as good policy. But the tension of that split reaction is particularly interesting when the Court is hearing cases in both areas during the same Term. So here’s my question for those VC commenters who think the correct reading of the Constitution is to uphold the existing practices in one area and strike it down in the other: How do you square your two different reactions?

To be clear, I realize that each side has a few possible explanations for its reaction. But I think it would be interesting and useful for our commenters to debate those different views from opposing sides in the same thread.