Summer SCOTUS Update

The latest session of the Supreme Court may have ended several weeks ago, but there have still been some recent developments on cases of BBA interest, namely marriage equality and the use of affirmative-action measures in higher education. 

The BBA has long been a supporter of marriage equality both in the Commonwealth and federally, filing amicus briefs in its defense in 2002, 2005, 2011, and most recently in 2013 in the Supreme Court cases U.S. v. Windsor and Hollingsworth v. Perry.  Windsor challenged Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman, while Perry challenged California’s Proposition 8, a gay-marriage ban approved by a 2008 ballot initiative.  Our brief for these two cases argued that sexual-orientation classifications warrant heightened scrutiny under the Equal Protection Clause.  We were pleased that the Supreme Court’s ruling affirmed that all married couples deserve equal treatment from the federal government.

The Supreme Court’s opinion may be sought again, this time in a case from the Fourth Circuit striking down Virginia’s ban on same-sex marriage as well as a similar case from Utah.  The Virginia case concerns both a state’s power to forbid same-sex marriage within its boundaries and its power to decide whether to recognize same-sex marriages legally performed in other states.  These are just two cases in what has been, by one count, a string of 35 consecutive state and federal rulings on the side of same-sex marriage in the 14 months following the Supreme Court ruling.

It appears likely that the local Virginia county clerk will file a petition for SCOTUS review of the case by the end of October.  The next Supreme Court term begins on October 6, and while the Court has complete discretion on whether to take up this or any other case, it seems inevitable that the justices will weigh in again, probably sooner rather than later, on this fast-moving issue.

Another case of BBA interest, Fisher v. University of Texas, continues to evolve.  The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, a position that inspired amicus briefs in the 2003 case, Grutter v. Bollinger, and 2012’s Fisher v. University of Texas.  In each case, the BBA’s amicus briefs argued that race-conscious admission policies are constitutional as well as positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher brief:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  This session, in Fisher, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in mid-September, but the issue remains open to discussion and interpretation. 

In July, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan.  The same procedural course of events transpired in the initial case, which was taken up by the Supreme Court after a three-judge panel upheld the University’s policy and the Fifth Circuit denied an en banc review.  Given this latest ruling, it looks like the plaintiffs may again seek SCOTUS review.  Perhaps anticipating this move, the University of Texas President penned an op-ed posted online by the National Law Journal earlier this week, arguing that higher-education institutions still need affirmative-action policies.  We agree.

The BBA is always interested in drafting or signing on to amicus briefs that fall within our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  Both improved diversity in the legal profession through equal access to higher education and marriage equality fall squarely within these goals.  We will continue to keep an eye on both of these issues going forward. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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