The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term–same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.
Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.
The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas.
