WASHINGTON -- Within days, the Supreme Court is expected to issue
a series of decisions that could transform three fundamental social
institutions: marriage, education and voting.
The extraordinary run of blockbuster rulings expected in the
space of a single week will also reshape the meaning of legal
equality and help define for decades to come one of the
Constitution's grandest commands: "the equal protection of the
If those words require only equal treatment from the government,
the rulings are likely to be a mixed bag that will delight and
disappoint liberals and conservatives in equal measure. Under that
approach, same-sex couples who want to marry will be better off at
the end of the term, while blacks and Hispanics may find it harder
to get into college and to vote.
But a tension runs through the cases, one based on different
conceptions of equality. Some justices are committed to formal
equality. Others say the Constitution requires a more dynamic kind
of equality, one that takes account of the weight of history and of
The four major cases yet to be decided concern same-sex marriage,
affirmative action in higher education and the fate of the Voting
Rights Act of 1965, which places special burdens on states with a
history of racial discrimination.
Formal equality would require that gay couples be treated just
like straight couples when it comes to marriage, white students just
like black students when it comes to admissions decisions and
Southern states just like Northern ones when it comes to federal
oversight of voting.
But such rulings -- "liberal" when it comes to gay rights,
"conservative" when it comes to race -- are hard to reconcile with
the historical meaning of the 14th Amendment's equal protection
clause, adopted in the wake of the Civil War and meant to protect
the newly freed black slaves. It would be odd, said David Strauss, a
law professor at the University of Chicago, for that amendment to
help gays but not blacks.
"What's weird about it would be the retreat on race, which is the
paradigm example of what the 14th Amendment is meant to deal with,"
he said, "coupled with fairly aggressive action on sexual
But actual as opposed to formal racial equality has fallen out of
favor in some circles, Mr. Strauss said. "One thing that seems to be
going on with these historically excluded groups is that they come
to be thought of as just another interest group. Blacks seem to have
crossed that line."
Gay men and lesbians have yet to achieve formal legal equality.
They are not protected against job discrimination in much of the
nation, may not marry their same-sex partners in most of it and do
not have their marriages recognized by the federal government in any
of it. The fact that they are asking for equal treatment may help
their cause in the cases challenging the federal Defense of Marriage
Act, or DOMA, which for purposes of federal benefits defines
marriage as the union of a man and a woman, and Proposition 8, the
California voter initiative that banned same-sex marriage there.
But Chief Justice John Roberts suggested in March that ordinary
politics would sort things out. "As far as I can tell," he told a
lawyer challenging the federal marriage law in United States v.
Windsor, No. 12-307, "political figures are falling over themselves
to endorse your side of the case."
In the three months since that argument, three more states have
adopted same-sex marriage, raising the total to 12, along with the
District of Columbia. …