The issue to be resolved in Schuette was "whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, was invalid under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution?" The first section of that Michigan amendment provided:
"The University of Michigan, Michigan State University, ... and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
In further framing the issue, the court said, "The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions."
In sustaining the Michigan Constitutional provision, here's what the Supreme Court said:
"By approving Proposal 2 and thereby adding [it] to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power.
"The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.
"Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.
"Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice.
"Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate's power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
"The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity -- and the duty -- to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.
"These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters."
But the court did warn that the right of the voters do deal with delicate racial issues was not absolute.
"These precepts are not inconsistent with the well established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts."
So, unless traditional marriage laws and constitutional provisions are found to "encourage or command" that hurt or injury be inflicted on those who would opt for same sex marriage, it is my guess that when the question reaches the U. S. Supreme Court, that that court will find that no federal question is involved, and that the matter is to be left to the judgment of the people of the several states.
This case also indicates to me that at least five justices have learned the folly of the judicial hubris, involved (40 years of unending division) in placing delicate issues of public policy, such as abortion, beyond the power of adjustment by the people and the state legislatures.
Posted Online: July 10, 2014 at 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2014
John Donald O'Shea
No comments:
Post a Comment