Ban on Gay Conversion Therapy in Uncharted Territory

      Teenager Gabriel Arana came home from high school one day in fall 1998 to be confronted by his mother, who had discovered an e-mail with his confession to having a crush on a male classmate. “Are you gay?” his mother asked. “I blurted out that I was,” Arana recalled in a first-person account written in April for The American Prospect.
      Arana’s problem-solving mother gathered research on the Internet on “gay conversion therapy.” Along with Gabe’s father, she prevailed on their reluctant son to go meet the leading practitioner in the field: Joseph Nicolosi, a clinical psychologist in Los Angeles and then the president of the National Association for Research and Therapy of Homosexuality (NARTH).
      Arana’s story ends well. He gave therapy a try, but he was not “cured” — only left in despair and doubt that eventually led him to contemplate suicide in college. His chastened father came around. “I’d rather have a gay son than a dead son,” he said when he learned of Gabe’s suicidal thoughts. Today, Gabe is still gay, living in Washington with his husband and working as a writer and web editor at the Prospect.
      Gabe’s story exemplifies the results of gay conversion therapy: few if any documented “cures,” but many patients saddled with anguish and doubt about a part of their identity that the American Psychiatric Association delisted as a mental disorder four decades ago. Instead of helping patients, gay conversion therapy may hurt them, according to the considered judgment of the American Psychological Association and other recognized mental health associations.
      Based on those views and anecdotal evidence from the victims of unsuccessful gay conversion therapies, the California legislature earlier this fall approved a precedent-setting bill to bar licensed mental health professionals from practicing what the law calls “sexual orientation conversion efforts” (SOCE). “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Gov. Edmund G. Brown Jr. said in signing the bill on Sept. 29.
      The Democratic-controlled legislature approved the bill by substantial margins, but most Republicans opposed it. So did some mental health organizations, concerned that the bill as originally written could have affected mainstream professionals in their treatment of patients with sexuality issues. Those groups shifted to support or neutrality after the bill was rewritten more narrowly.
      In opposing the measure, NARTH and member therapists argued that their practices were being misrepresented and that the alleged harms were unproven. They noted that NARTH now officially discourages so-called “aversion therapies” — including electric shock, induced vomiting, and the like. In his account, Arana did not indicate that Nicolosi used such techniques in treating him.
      The fate of the law, due to go into effect on Jan. 1, is clouded because of separate legal challenges filed in federal court in Sacramento. One suit was brought by individual gay conversion therapists (Welch v. Brown); the other by NARTH, individual therapists, and unnamed parents on behalf of sons now being treated by Nicolosi (Pickup v. Brown). In successive rulings last week [Dec. 3, Dec. 4], one federal judge ruled against the law, while the other upheld it. The issue is headed inevitably to the federal appeals court for California, the Ninth Circuit, and perhaps eventually to the Supreme Court.
      The government has undoubted authority to regulate medical professionals, but the law ventures into uncharted territory because it touches on views — disapproval of homosexuality — that are constitutionally protected under the First Amendment’s provisions on freedom of speech and freedom of religion. '”There's a good deal of uncertainty about how to apply the First Amendment to professional speech to clients and even more uncertainty in the case of minors,'' Eugene Volokh, a First Amendment expert at UCLA Law School, remarked to The New York Times.
      In the first of the court rulings, Judge William Shubb saw the free-speech issue as requiring him to use the highest constitutional standard — strict scrutiny — in reviewing the law. “[I]t is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality,” he wrote. Shubb said he doubted that the law would withstand strict scrutiny because the alleged harms of the therapies were unproven and the law left unlicensed counselors free to practice the therapies anyway.
      In her ruling the next day, Judge Kimberly Mueller viewed the law as regulating conduct, not speech, and therefore subject to the lax “rational basis” standard of constitutional review. Mueller acknowledged that the psychologists’ group’s task force had waffled on the harm issue. “We cannot conclude how likely it is that harm will occur from SOCE,” the task force wrote. But it went on to say there was evidence that efforts to change sexual orientation “may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.” Mueller deferred to the legislature on the issue, saying it “could have had a legitimate reason” to enact the law.
      Whatever the eventual legal ruling, Arana is convinced that Nicolosi and others simply do not understand homosexuality, which Nicolosi to this day attributes to overprotective mothers and underattentive fathers. In an interview for the story, Nicolosi tells Arana that he thinks the therapies at least did no harm. “Like nuclear fallout, the damage came later,” Arana writes, “when I realized my sexual orientation would not change.”

Gerrymandering, Unchecked by Court, Aids GOP

      House Speaker John Boehner wasted no time on election night in celebrating the Republicans’ projected victory in maintaining control of the House of Representatives. With polls not yet closed in the West, Boehner went before network cameras to lay out his view of the results. By renewing the GOP’s majority, Boehner said, “the American people have also made clear that there is no mandate for raising tax rates.”
      Three weeks later, a CNN poll released on Nov. 26 indicated that Boehner misread the election results. More than two-thirds of those surveyed said the current “fiscal cliff ” deadlock should be resolved by a mix of spending cuts and tax increases; fewer than one-third favor the GOP’s preferred solution of spending cuts only.
      More fundamentally, however, Boehner is wrong to claim any Republican mandate at all in the GOP’s diminished 234-201 majority in the House. Actually, more Americans voted for Democratic candidates in the House than for Republicans: about 56 million for Democrats and 55 million for Republicans, according to the latest compilation by the Associated Press. This marks the first time since 1996 that one party won more House seats while winning fewer votes, according to data from the House Clerk’s office reported by Bloomberg’s veteran political analyst Greg Giroux.
      How did Republicans fare so much better in House seats than in vote totals? Giroux and others point to one major factor: partisan gerrymandering in the House districts drawn up by GOP-controlled legislatures after the 2010 census. In state after state, GOP lawmakers did all they could to strengthen Republicans in their districts and either weaken Democrats in theirs or pack Democratic voters into districts where their votes would be to some extent wasted. Democrats followed the same script in states where they controlled the process, such as Illinois and Maryland, but the Republicans had a numerical edge in state capitals as the decennial redistricting process got under way.
      Results from this year’s elections cited by progressive commentators — Ian Millhiser, a senior analyst with the Center for American Progress, and syndicated columnist Harold Meyerson — highlight discrepancies between the partisan divide at the state level and results in House contests. President Obama carried Pennsylvania by more than 5 points, but Republicans won 13 out of 18 House seats. He won Ohio by 2 percentage points, but Republicans captured 12 out of 16 House seats. In Virginia, Obama won by 3 percentage points, but Republicans won eight of 11 House seats. Obama carried Wisconsin by 7 percentage points, but Republicans won five of the eight House seats. Obama eked out a narrow victory in Florida, while Republicans won 17 of 27 House seats.
      By Meyerson’s calculation, Republicans gained a 55-25 edge in the House delegations from those five states that Obama carried. “If the control of these House seats reflected the Democrats' statewide margins in presidential and Senate contests,” Meyerson writes, “the Democrats would likely be at parity or in the majority in the new House.”
      Creative map-drawing is not the only explanation for the discrepancy. In many states, Democratic voters are concentrated in urban districts that produce lopsided majorities for Democratic candidates. In Pennsylvania, for example, Democrats carried the five districts they won by more than 750,000 votes, but Republicans amassed a slight edge in the statewide totals for House races.
      Still, the importance of partisan gerrymandering is undeniable. And the practice persists, as Millhiser notes, because of the Supreme Court’s timidity in confronting it.
      The court in 1986 opened the door, but only slightly, to constitutional challenges to overly partisan congressional or legislative districting. The fractured ruling in Davis v. Bandemer said a districting plan could be thrown out if the evidence showed “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”
      Two decades later, the court confronted in a Pennsylvania case a seemingly egregious example of partisan gerrymandering. After the 2000 census, the GOP-controlled legislature did its best to help the party as it redrew House districts to account for the loss of two seats. Democratic incumbents were paired against each other in two districts, while another Democratic incumbent was moved into a Republican-leaning district. As a result, the GOP moved from an 11-10 majority in the state’s House delegation to a lopsided 12-7 advantage.
      Despite the evident partisanship, the court in Veith v. Jubelirer (2004) left the districting scheme in place. Four conservative, Republican-appointed justices led by Antonin Scalia called for eliminating any oversight of gerrymandering at all. Moderate-conservative Anthony M. Kennedy would not go that far; instead, he left the door open to future challenges if “workable standards” emerged. Two years later, however, Kennedy wrote for a 5-4 majority in rejecting Democrats’ challenge to an overtly partisan House redistricting scheme drawn by the GOP-controlled legislature in Texas (League of United Latin American Citizens v. Perry, 2006).
      With little reason to fear Supreme Court scrutiny, the Pennsylvania legislature, still under GOP control, again drew House districts after the 2010 census to advantage Republicans. The party’s 13-5 majority in the state’s congressional delegation defies the close partisan divide among voters. But this and similar distortions in other states will persist as long as the Supreme Court turns a blind eye to the dishonored practice of political gerrymandering.

On Gay Marriage, Will High Court See a "Tipping Point"?

As Maine goes, so goes the nation.

— Traditional political adage

      The press release hit e-mail boxes shortly before midnight on election night (Nov. 6): “Mainers Approve Marriage for Same-Sex Couples; First Time Freedom to Marry Passed in Ballot Measure.” For gay rights advocates, the vote in Maine broke a string of 31 consecutive defeats in statewide voting on marriage equality. By the next morning, however, they could claim a four-state winning streak, as voters in Maryland and Washington state also approved measures to recognize same-sex marriages and Minnesotans rejected a measure to ban same-sex marriage in the state.
      Voting in all four states was close, but not razor-thin. The gay marriage proposals won with 53 percent in Maine, 52 percent in Maryland and Washington. In Minnesota, the constitutional amendment to define marriage as the union of one man and one woman failed with a little under 48 percent of the vote.
      The margins were far smaller than the 2-to-1 majorities that gay marriage opponents typically gained in their string of victories dating from 1998 in Alaska and Hawaii. Still, a win is a win, however close, whether in baseball or politics. Gay rights organizations were trumpeting the results even as gays and lesbians around the country were hailing the victories as a watershed event. “The word tipping point comes to mind,” Ian McCann, a gay journalist in Dallas, posted on his Facebook page.
      LGBT Americans had other grounds for celebrating. Tammy Baldwin, a Democrat, will become the first openly LGBT member of the Senate in January after defeating her Republican opponent, popular former governor Tommy Thompson, by a 5 percent-plus margin. Baldwin’s House seat was won by another openly gay Democrat, Mark Pocan. Mark Takano, a Japanese American, became the first openly gay person of color to be elected to Congress by winning a House seat in California. In all, the Gay and Lesbian Victory Fund counts six openly gay members of the U.S. House and seven candidates who won election as the first or the only out members of their state legislatures. “This was a breathtaking leap forward,” said Chuck Wolfe, president and CEO of the fund.
      Gays and lesbians were also celebrating President Obama’s re-election. Obama had disappointed the LGBT community in his first two years in office by moving slowly on repealing the military’s “don’t ask, don’t tell” policy and failing to get behind a federal bill to ban anti-gay discrimination. But he solidified support after signing the “don’t ask, don’t tell” repealer in December 2010 and then again when he endorsed marriage equality for same-sex couples in May 2012.
      More important than any individual race or ballot measure, gay marriage appears to have achieved majority support nationwide, according to several recent polls, and with that support appears to be receding as a political wedge issue. Republican strategists used anti-gay marriage amendments in 2004 to help drive the GOP base to the poll. The tactic may or may not have helped George W. Bush carry Ohio and with it win re-election, but regardless there was little evidence in the 2012 balloting that support for gay marriage carried a political cost. At the head of the ticket, Republican Mitt Romney said he opposed gay marriage but did not highlight the issue.
      The victories in Maryland and Washington came after state legislatures voted to recognize same-sex marriages; in both states, Democratic governors pushed the measures through Democratic-controlled legislatures, but won only thanks to a handful of votes from Republican lawmakers backing the party lines. Opponents forced referendums on the measures, professing confidence that voters would reject the laws; they were wrong.
      Once the newly approved laws take effect, gay marriage will be legal in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — plus the District of Columbia. Of those 10 jurisdictions, elected lawmakers voted their approval in eight — all but Iowa and Massachusetts. Opponents can no longer blame activist judges alone for “redefining” marriage; the change is now coming through the political process.
      The argument over the litigation strategy versus the political strategy has simmered within the LGBT community. Those who favored going to courts argued for boldly claiming constitutional rights now, not later; those who stressed the political route warned of a backlash that could harm, not help, the cause. From the perspective of 2012, it appears that both sides can claim vindication. Without litigation, the issue would never have risen to the top of the national agenda. Without victories in legislatures and at the ballot box, favorable court rulings will be hard to win and — as in California, with Proposition 8 — at risk of reversal.
      The wall of anti-gay marriage constitutional amendments, adopted in most red and a handful of blue states, now poses a daunting obstacle for marriage equality advocates. Reversing them through the political process is out of the question today, and perhaps for the foreseeable future. For that reason, the focus of attention must inevitably shift to the Supreme Court, which could decide to hear the constitutional challenge to Proposition 8 later this term. As Mr. Dooley wisely observed, the Supreme Court reads the election returns. It remains to be seen whether the justices will look to Maine as a bellwether on this issue.

Drone War Needs Close Look From Next President

      Barack Obama campaigned in 2008 on a promise to turn the country’s back on the Bush administration’s war on terrorism policies. Guantánamo was to be closed, “enhanced interrogation techniques” ended, and a friendlier face presented to the Muslim world. Four years later, Guantánamo remains open, military trials continue to be used, and remote-controlled U.S. drones are targeting suspected al Qaeda operatives in three Islamic countries — Pakistan, Somalia, and Yemen — with the inevitable risk of collateral damage to innocent civilians.
      With the present campaign dominated by a single domestic issue — the U.S. economy — human rights concerns have gone all but unaddressed. But U.S. human rights groups have presented Obama and his Republican challenger Mitt Romney with ambitious agendas for the next president. In separate papers, Amnesty International USA and a coalition of groups led by Freedom House renew the call to close Guantánamo, urge more accountability on the use of drones, and ask for stronger U.S. measures to support democratization and protect human rights abroad.
      Both papers stress the importance of U.S. leadership on international human rights issues. That theme should resonate with internationalist liberals as well as conservative adherents to the doctrine of American “exceptionalism.” And Freedom House takes time to pat the Obama administration on the back for taking a lead role on such issues as LGBT rights, Internet freedom, and general women’s rights. Perhaps those policies will be maintained whichever candidate wins.
      Conversely, many of the proposals in both papers are unlikely to make much if any progress whatever the outcome of the presidential election. The next Congress seems all but certain to look much the current one: a Republican-controlled House, Democratic-controlled Senate, and no sudden outpouring of bipartisanship. On that basis, it seems unlikely that Congress will relent in its stubborn opposition to closing Guantánamo or trying the suspected “enemy combatants” in civilian instead of military courts. And Amnesty International is all but certain to be disappointed in its wish list of human rights treaties for the Senate to ratify. Nor is the United States likely to join the International Criminal Court in Obama’s second term or in a Romney administration.
      By contrast, the president himself is the decision-maker on the common demand in both papers for a re-evaluation and recalibration of the Obama administration’s expanded use of drones to target al Qaeda. Amnesty asks the two candidates: “Will you end unlawful killings, bring the use of drones in line with international human rights and humanitarian law, and make public the Department of Justice memo that reportedly details the legal rationale for ‘targeted killings?’”
      In like vein, the Freedom House-led coalition calls on the next president to “reevaluate and publicly clarify the criteria and the basis for targeting . . . decisions, the process by which such decisions are made, and the mechanisms in place to ensure compliance with international law and the protection of civilians.” Amnesty International USA signed on to the coalition’s letter, which also drew support from such leading human rights groups as the American Civil Liberties Union, Human Rights First, and Human Rights Watch.
      Obama’s embrace of the drone war discomfits his supporters on the political left even as it strengthens his national security credentials with centrist Democrats and independents. For his part, Romney endorsed the use of drones in the final presidential debate, but with a significant caveat: “We can’t kill our way out of this.”
      The human rights groups’ call for greater transparency echoes the view of news organizations that have attempted to report on the drone war. “Accurate information is hard to come by,” Margaret Sullivan, the New York Times’s newly appointed public editor or ombudswoman, wrote in a column in mid-October. The Washington Post endorses the use of drones, but called in a Nov. 1 editorial for “greater disclosure, more political accountability, more checks and balances and more collaboration with allies.”
      In her column, Sullivan cited a report by the Bureau of Investigative Journalism in Britain that what Sullivan calls this “push-button war” claimed between 282 and 535 civilian lives, including 60 children, during Obama’s first three years in office. The administration insists the number is far lower. Sullivan goes on to quote Sarah Knuckey, a human rights investigator now at New York University Law School, as having found widespread fear of drone strikes among Pakistanis when she visited Pakistan recently.
      The casualty count of al Qaeda militants is likewise a subject of sharp dispute. The government appears to count any adult males killed in drone strikes as militants unless there is exonerating evidence. A new report by human rights investigators for Stanford and New York University law schools urges journalists to make that notation in any body-count stories. The report also contends that the drone strikes have aided recruitment for anti-American groups and, on that basis, questions how valuable they are in making the United States safer.
      With Obama and Romney in seeming agreement, the conflicting accounts and assessments went unexplored in the presidential campaign. But the next commander in chief would be well served to heed the calls from many quarters to take a clear-eyed, hard-headed look at the drone war before deciding how much further, if at all, to extend it.

Making Every Vote Count in Presidential Elections

      As hard to believe as it may seem, the Framers of the Constitution took great pride in the method they devised for electing the president of the United States. Writing in Federalist No. 68, Alexander Hamilton went so far as to say that “if it be not perfect, it is at least excellent.”
      Today, Americans are less than enamored of what has come to be called the Electoral College — a term that actually does not appear in the Constitution. Gallup polls dating back to the 1940s have consistently found majority support for direct popular election of the president. The most recent survey, in October 2011, found 62 percent of those responding in favor of direct popular election. Changing the system had majority support from Republicans (53 percent) for the first time since 2000 as well as stronger support from independents (61 percent) and Democrats (75 percent).
      Despite public sentiment, the Electoral College has proven stubbornly resistant to change. A constitutional amendment for direct popular election came tantalizingly close in Congress in 1970. But it failed in the Senate when small-state senators, Republicans and Democrats, filibustered it to death.
      Since then, there has been nothing by way of serious effort to change. But perhaps the 2012 campaign can give new life to the issue by demonstrating to Americans in a majority of states that Electoral College math makes them largely irrelevant in a presidential contest. Instead, the candidates focus their attention on a handful of “battleground” states — think Ohio — whose issues assume disproportionate importance in determining the outcome.
      The flaws of the Electoral College system could have been recognized from the start. Hamilton saw two main virtues in the system, but neither actually materialized. Hamilton reasoned that the electors would be “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. . . .” In addition, the electors, barred from holding any other position in the national government, would be immune from “cabal, intrigue, or corruption.”
      The electors never deliberated as such. The Constitution prevented deliberation by requiring the electors to meet in their respective state capitals: thus, there never has been an Electoral College as such. Today, the electors are mere placeholders in a system that is in large part popular election. Presidential electors typically are not even listed on the ballot and cast their votes as pledged for their party’s candidate except for the very occasional “faithless” elector.
      The emergence of political parties rendered the Framers’ fear of intrigue by foreign powers irrelevant. Instead, it set the stage for the emergence over time of a political system susceptible to corruption of other kinds: the “spoils system” of Jacksonian politics and the dominant role of financial interests in paying for campaigns since the late 19th century.
      The emergence of political parties also quickly demonstrated the absurdity of the Framers’ idea of choosing the runner-up as vice president. The first contested election, in 1796, produced a Federalist president, John Adams, and his Anti-Federalist foe Thomas Jefferson as vice president. The Twelfth Amendment, ratified in 1804, tied the two offices together. But the amendment left unchanged another original flaw: the decision to throw the election into the House of Representatives if no candidate received a majority of electoral votes.
      That system worked badly in 1800, the only time it has been used. If it were to be used today — say, in the mathematically possible result of a 269-269 electoral vote tie — the one-vote per state rule would give outsized influence to sparsely populated states that happen to be predominantly Republican. But the selection of a vice president would fall to the Senate, which happens to have a Democratic majority today. Thus, political reporters have conjured up the possibility of a President Romney and Vice President Biden — or, in the event of a deadlock in the House, President Biden!
      Apart from this unlikely scenario, the Electoral College seems inconsistent with modern democratic theory simply because it does not guarantee victory to the popular vote winner. Indeed, four men were elected president after losing the popular vote: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). Tellingly, Adams, Hayes, and Harrison are not regarded as successful presidents; and Bush’s legacy seems likely to be clouded at best.
      Supporters of the Electoral College have a new answer to this issue. They argue that counting electoral votes by states “compartmentalizes” the risk of popular vote-counting fraud or mistakes. A few hundred or even thousand votes wrong here and there typically has no effect on a statewide outcome, they reason. But if every vote counts, bad vote-counting would matter everywhere. In effect, a Florida-style recount, with disputes over butterfly ballots and hanging chads, could be played out all across the country, and the final result lastingly subject to mathematical doubt.
      The notion that the United States cannot count votes accurately sells the country’s electoral system quite short. But, if true, it only underlines the need to reform the voting system, a need underscored by the wrenching debates over voter ID laws in the past few years. In that sense, replacing the Electoral College with direct popular election of the president could serve a valuable purpose by forcing the adoption of national standards to make more real the fundamental democratic premise of one person, one vote — and every vote counts.

Striking Down the Offense Against Marriage Act

      The federal Defense of Marriage Act (DOMA) is all but dead. Seven federal courts have ruled it unconstitutional, and Supreme Court watchers have a growing consensus that at least five justices will agree before the court’s current term ends next June.
      Yet Congress passed this anti-gay marriage law by overwhelming, bipartisan majorities in 1996, and a Democratic president who had support from many gay leaders and gay rights advocates signed it into law. Back then, opponents raised constitutional doubts mainly about the provision — section 2 — that no state was required to recognize same-sex marriages from another state. Some of the opponents said merely that the provision was unnecessary since states have historically had the discretion to determine whether to recognize marriages from other states.
      Far less attention was paid to the provision, section 3, that defined marriage for purposes of federal law as the union of one man and one woman. The federal government had never before established a national definition for marriage, but to many people it seemed unsurprising that the government would have that authority. And the provision seemed to have no immediate impact since no state at the time granted marriage rights to gay or lesbian couples.
      Things are different today. The harm that the law imposes is now tangible and concrete. Thousands of same-sex couples are legally married in the United States. Six states and the District of Columbia allow same-sex couples to marry; so do Canada, the United States’ neighbor to the north, and nine other countries at latest count. At least one state, Maryland, recognizes same-sex marriages from other jurisdictions; and Maryland is one of three states — Maine and Washington are the others — that have measures on the Nov. 6 ballot to legalize same-sex marriages.
      These legal developments unmask the federal law for what it is: not a defense of marriage, but an offense against marriage. Congress approved the law in 1996 for reasons that seemed self-evident: preserving traditional marriages, protecting kids and promoting morality. Today, the law is recognized as denying legally married gay and lesbian couples benefits — financial and otherwise — matter-of-factly extended to opposite-sex couples living in the same state, even on the same block.
      Edith Windsor, the DOMA victim in the most recent federal court decision, was hit with a $363,000 estate tax bill after her wife, Thea Spyer, died in 2009. Windsor and Spyer, New York residents, had married in Canada two years earlier; New York recognized same-sex marriages from other jurisdictions even before the state legislature voted to approve gay marriage in June 2011.
      In opposite-sex marriages, a spouse’s estate passes to his or her surviving spouse without incurring federal tax liability. But under DOMA, Windsor was not eligible for that same, uncontroversial tax benefit. The plaintiffs in other DOMA challenges have suffered similar, if less dramatic, financial disadvantages. The widower of former congressman Gerry Studds was denied Social Security survivors benefits. Several current or former federal employees have been prevented from extending health insurance or retirement to their spouses.
      In ruling for Windsor last week [Oct. 18], the New York-based Second U.S. Circuit Court of Appeals held that laws that single gays and lesbians out for unfavorable treatment are subject to heightened constitutional scrutiny. The majority in the 2-1 decision cited the history of discrimination against gays and their lack of political power to prevent legally sanctioned discrimination.
      Having raised the bar a bit, the court then rejected all of the rationales offered by lawyers for House Republicans to uphold the law. (The Obama administration no longer defends the law.) The court said the law did not help maintain a uniform definition of marriage, protect the federal treasury, preserve a traditional understanding of marriage or encourage responsible procreation.
      The case, Windsor v. United States, is viewed as the best of four cases pending before the Supreme Court for the justices to use to resolve the issue. One reason: Justice Elena Kagan, the former solicitor general, may be disqualified from the other cases, but not from this one. The justices have the cases ready for conference early next month. The Second Circuit must have been aware of that schedule as it rushed its decision out only three weeks after argument.
      When the case is argued, the challengers will certainly face combative questions from Justice Antonin Scalia. The court’s guardian of constitutional originalism will undoubtedly contend that a provision adopted in 1868 — the Fourteenth Amendment’s Equal Protection Clause — was not intended or understood to say anything about gay marriage.
      Scalia will be right on that point, but irrelevant. Despite Scalia’s protests, the Constitution is in fact a living document for an ever-changing country and its people. None of the Fourteenth Amendment’s framers would have understood it to prohibit discrimination on the basis of sex, but the Supreme Court decisions from the 1970s applying the Equal Protection Clause for that purpose are now well established.
      The pivotal vote in the DOMA case likely rests with Justice Anthony M. Kennedy. When he led the court in striking down anti-sodomy laws in 2003, Kennedy made clear his view that the Constitution protects gay and straight people alike. “As the Constitution endures,” Kennedy wrote, “persons in every generation can invoke its principles in their search for greater freedom.” Weighed against those principles, DOMA seems doomed.

Supreme Court Showdown on Affirmative Action

      When the Supreme Court pulled the plug on an ambitious school desegregation plan for Kansas City in 1995, Justice Ruth Bader Ginsburg complained in dissent that the retreat was both “too swift and too soon” (Missouri v. Jenkins). Much the same could be said about the growing discontent among the American public and among many experts about the efforts to use race-conscious admissions policies in order to increase racial and ethnic diversity in U.S. colleges and graduate schools.
      The latest manifestation of this supposed re-examination of racial preferences came last week [Oct. 4] in a report by the Century Foundation written by Richard Kahlenberg, a longtime advocate of using socioeconomic status instead of race or ethnicity to increase diversity in higher education. In presenting the report at the progressive think tank’s Washington office, Kahlenberg bluntly warned that race-based affirmative action “is likely on its way out” — unpopular with the public and under challenge in legislatures, at the ballot box, and in the courts.
      The discontent is fed further by the new book, Mismatch: How Affirmative Action Hurts Student It’s Intended to Help, and Why Universities Won’t Admit It, by UCLA law professor Richard Sander and legal affairs journalist Stuart Taylor Jr. The book elaborates on Sander’s empirical research over the past decade that he says shows many beneficiaries of racial preferences fare badly in college or law school, doomed to failure because they are competing with academically superior classmates.
      The publication of the report and the book were both timed to coincide with the Supreme Court’s oral arguments on Wednesday [Oct. 10] in the latest showdown on affirmative action, Fisher v. University of Texas. The justices are being asked to invalidate UT’s use of race as part of what administrators describe as a “holistic” evaluation of applicants for about one-fifth of the slots in each year’s entering first-year class.
      The Fifth U.S. Circuit Court of Appeals upheld UT’s policies, saying that they conformed to the criteria set out by the court nine years ago in a University of Michigan case, Grutter v. Bollinger (2003). Attorneys representing Abigail Fisher, an unsuccessful white applicant for admission in 2008, argue that UT’s policies go beyond the limited use of race allowed under Grutter. Alternatively, they urge the court to overrule Grutter and severely limit or completely prohibit consideration of race in college and university admissions.
      The case can be handicapped easily: Justice Sandra Day O’Connor, who authored the majority opinion in Grutter, has been succeeded by Samuel A. Alito Jr., a hard-edged conservative who has cast decisive votes against race-conscious policies in two major decisions since his appointment in 2006. For many court-watchers, the only question in the case is not whether but how far the court will go in limiting race-conscious admissions policies.
      Institutionally, however, the court is not supposed to change course simply because of a change in personnel. So the justices need to closely examine UT’s policies, as they have evolved during two decades’ worth of litigation, along with the densely statistical debate waged in friend-of-the-court briefs about the overall impact of racial preferences. On both counts, the evidence is less than clear-cut and the interpretations by opposing sides in sharp conflict.
      For UT, the pivotal question will be whether the university had good reason to re-introduce some consideration of race after Grutter since it was already using an ostensibly race-neutral mechanism to boost enrollment of African American and Hispanic applicants. The state’s “Top Ten Percent” law, passed in 1997, guarantees students in the top 10 percent of their high school graduating classes a slot at UT’s flagship campus in Austin. With black and Latino students concentrated in racially identifiable schools, the law increases their enrollment, but not enough to satisfy the school. Today, blacks comprise about 4.5 percent of UT’s student body, Hispanics 16.9 percent; both figures are below the proportions for the state’s population overall.
      Justices on both sides may cite the broader policy debate to help make their case. Conservatives will surely cite the supposed costs of racial preferences — stereotyping and stigmatizing minority students — along with Sander’s claimed proof of “mismatch.” The statistical argument goes far beyond what can be elaborated in a weekly column, but it can be said at least that Sander’s conclusion is disputed and, if valid, merely shows the need for universities to follow through with well designed and well resourced academic support for affirmative-action admits.
      As for the alleged stigmatization, Sander and Taylor are selective in quoting prominent African Americans as critics of racial preferences, including Supreme Court Justice Clarence Thomas, who has famously described his indignation at bearing “the taint of racial preference.” They do not note that the court’s only Hispanic justice, Sonia Sotomayor, proudly counts herself as “an affirmative action baby,” apparently unaware of any taint due to her status.
      The University of Texas admitted its first African American student in 1950, only after a unanimous Supreme Court decision forced it to do so (Sweatt v. Painter). Sixty years later, the Austin campus is by no means a model of racial harmony, as seen in a recent report of “bleach ballooning” incidents directed at African American students and fraternity parties with anti-immigrant themes. Admissions policies aimed at making the campus more diverse, on paper and in practice, deserve respectful consideration from a Supreme Court dedicated to equal justice under law.