Court rulings mark steps toward pluralism

But decisions on affirmative action, gay rights are not as far-reaching as they may seem

By ROBERT F. DRINAN

The nation seemed stunned by the Supreme Court decisions in late June on affirmative action and gay rights. On further analysis these rulings were somewhat predictable and not as far-reaching as they may have first appeared.

In the two cases from the University of Michigan, the court by a 5 to 4 majority ratified policies on integration that the military, academia and business have followed in the years before and after the Bakke decision in 1978. Indeed, the military has employed affirmative action to become the most integrated institution in America. The Pentagon brief in favor of the Michigan Law School plan had a clear and convincing impact on the court.

In fact, it is hard to conceive the Supreme Court wiping out all of the victories that American society has achieved by reaching out to people of color. The argument of the minority on the court that race may never be taken into account seems to be in conflict with the whole thrust of American law since the Civil Rights Act of 1964.

The court suggested that another 25 years of affirmative action will not be necessary. That hope will not be realized until the government changes the present situation mentioned only by Justice Ruth Bader Ginsburg. She noted that 71.6 percent of African-American children go to primary and secondary schools where the majority of the students are persons of color. The test scores in these schools are depressingly below the medians in predominantly white schools in the same community.

But the affirmative action sustained at the University of Michigan Law School is open to challenge. The dissent of Justice Anthony Kennedy is persuasive in pointing out the imperfections and, yes, the dangers of allowing race-conscious remedies.

The decision, moreover, is not entirely clear. It states that every applicant to law school deserves a review of his or her application that is “holistic.” That word, in the opinion of Justice Sandra Day O’Connor, may be the next point of controversy when an application is denied.

The worlds of education, business and the military are relieved; their briefs had a decisive impact on the court. But the self-appointed organizations opposed to all affirmative action will continue to be boisterous and well-financed with a simplistic argument against the use of anything related to race.

Can some new or old groups persuade legislators and/or judges that racially impacted or predominantly black schools deny true equality to the white and the black students who attend them?

Meanwhile, the court’s 6-3 decision invalidating a Texas statute punishing gays for conduct that heterosexual individuals would not be penalized for can be construed as a narrow ruling. But can it be cabined? Even to ask that question suggests, some gays would assert, a certain bias against gays.

The next battleground is the military. The policy of “Don’t Ask, Don’t Tell” was adopted in 1993, but some 9,000 service members have been discharged since then only because they are gay.

Some observers fear that the decision in the Texas case about gays will tend to weaken public morality and encourage homosexual conduct. It is difficult to say categorically that such fears have no foundation. But the Supreme Court opinion will eventually require everyone to accept a definition of homosexuality that can be verified by a scientific evaluation. Is homosexuality a condition that is a part of the deepest biological characteristics of a person? If so, can a homosexual or lesbian person be denied privileges that are given by society to all heterosexuals?

Such privileges need not be granted to persons who engage in commercialized sex or in cases of rape or bigamy. Will the decision in the Texas case logically lead government to allow same-sex unions to merit the status of marriage? Congress can legislate a negative answer. But legislation can be crafted by which a legal union of gay couples can be granted certain tax or pension benefits for persons living together for a designated period of time. Adoption should be, as always, based on what is in the best interest of the child. Loving parents of a same-sex union may well offer a better situation for a child than an orphanage or other arrangements.

Even Justice Clarence Thomas in his strong dissent admitted that the Texas law was “silly” and as a state legislator he would vote to repeal it. There is therefore little support for restricting or punishing adult homosexuals who engage in conduct that is permitted heterosexual couples.

It is interesting to note that a practicing Catholic, Justice Anthony Kennedy, wrote the sweeping decision that conferred new rights on gays while another Catholic, Justice Antonin Scalia, excoriated the majority in terms that have no shadow of balance or judicial restraint.

The Supreme Court also decided some cases where it arguably restricted rights.

It allowed a state to continue its policy of incarcerating for life any persons convicted of a third offense -- even though the crime was minor. The court also gave broad discretion to prison officials to curb the rights of inmates and sustained the so-called Megan’s Law permitting the public posting of the names and photographs of sex offenders. The court likewise rejected five different challenges to restrictions on free speech.

Many Americans -- including perhaps a disproportionate number of Catholics -- may feel that America’s moral foundation is crumbling. But one can view the Supreme Court’s decision on gay rights as a part of the process by which America moves toward real pluralism.

Jesuit Fr. Robert F. Drinan is professor of law at the Georgetown University Law Center.

National Catholic Reporter, July 18, 2003