Utah: No Same-Sex Marriages Because… Diversity?

The Colbert Report has an occasional segment called “The Craziest F#?ing Thing I’ve Ever Heard.” On the segment, Colbert shows a clip or explains an argument that produced the titular reaction, i.e. the verbal exclamation “That’s the craziest f#?ing thing I’ve ever heard.” (Example here, warning: pretty crazy.) Today, I had a similar reaction upon reading this brief Inside Higher Ed piece, “Did Higher Ed Affirmative Action Ruling Bolster Gay Marriage Bans?”

A bit of background. Affirmative action in higher ed has been hotly debated in the courts for decades. The first major Supreme Court ruling came in 1978, Regents of the University of California v. Bakke. The Bakke ruling held that quotas for racial minority students were unconstitutional. But the ruling was unusually split, with a total of six opinions being issued. Although a majority agreed that quotas were unconstitutional, a different majority agreed that race-based affirmative action was permissible in some form or another. The most important opinion ended up being a sole-authored piece by the swing justice, Powell. In that opinion, Powell introduced the idea “diversity” might be a compelling state interest, and race might be considered a “plus factor” with such a justification. Diversity was not especially defined in this ruling, nor were clear tests laid out for what kinds of racial preference were justifiable.

Higher-ed administrators turned Powell’s opinion into actual admissions practices, creating various programs that took race into account in admissions and drawing on diversity to justify those programs (Berrey 2011). In 2003, the Supreme Court considered two cases about affirmative action programs at the University of Michigan (for admission to the law school and the main undergraduate program). During the case, the University argued that educational diversity (having a wide variety of viewpoints in the classroom) was essential to its educational mission and benefitted all students. In the end, the Supreme Court upheld the idea of diversity as a compelling state interest, although limiting its use by striking down the particular program employed by the undergraduate college.* A follow-up ruling last year, Fisher v. University of Texas, further limited the kinds of race-based affirmative action programs that could be justified through the diversity argument by increasing the burden required of universities to justify affirmative action programs.

So, that’s the brief history of “diversity” arguments at the Supreme Court. Now it’s 2014, and the state of Utah is in the midst of litigation about its same-sex marriage ban. In December, a Federal District Court ruled that Utah’s same-sex marriage ban was unconstitutional, drawing on the recent decision striking down the federal Defense of Marriage Act. What’s this got to do with diversity, you might ask? Apparently, something, according to Utah’s brief to the Supreme Court:

Society has long recognized that diversity in education brings a host of benefits to students. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003). If that is true in education, why not in parenting? At a minimum, the state and its people could rationally conclude that gender diversity — i.e. complementarity — in parenting is likely to be beneficial to children. And the state and its people could therefore rationally decide to encourage such diversity by limiting the coveted status of “marriage” to man-woman unions.

That’s right folks. According to Utah, we should ban same-sex marriages to encourage diversity.

And that’s the craziest f#?ing thing I’ve ever heard.

* We (Ellen Berrey, Fiona Rose Greenland, and I) tell a detailed version of this story, focused on the evolution of the points system used by the undergraduate college at the University of Michigan, here.


1 Comment

  1. Does this mean that Utah, in order to provide children with the benefits of diversity, will ban marriage between people of the same race, education levels, political views, etc.

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