But a state like California, where voters rejected homosexual marriage, must now recognize it. On the narrow ground that its governor and attorney general refused to defend traditional marriage in court. So a new way has been opened for public officials to defy the people's will: Just dodge their duty to defend their state's laws.
The original impetus for the federal Defense of Marriage Act (DOMA) was to keep states that didn't recognize homosexual marriage from being forced to accept it. That part of DOMA, the key part, still stands. For now. But for who knows how long? With this court, nothing is clear and therefore nothing is final. Or even clearly settled just now.
The court also decided not to decide whether colleges and universities could go on discriminating against better qualified students in deciding whom to admit -- in the name of fighting discrimination, of course.
The first mistake, the original sin, in this long history of injustice was the court's approving schools' decision to combat racial preferences by adopting more racial preferences, this time in favor of the other race. Reverse Discrimination, it used to be called. Though it requires only a cursory glance at such policies to realize they're just the same old discrimination -- only with the colors reversed.
In this case, too, Mr. Justice Thomas offered some rare clarity. Plus a brief history of all the hollow rationalizations for American racism over the years and centuries -- slavery, racial segregation, and now the quota system called Affirmative Action. All were said to be for the benefit of the minority affected even though they hurt it. Today it is Affirmative Action that leads folks to suspect that its beneficiaries have been unfairly favored. ("So you're a graduate of Harvard Law. An Affirmative Action admission, I assume?")
Unfortunately, Mr. Justice Thomas' reasoning failed to sway the majority of the court, which once again chose justice delayed and denied over the real thing. Real justice would have been unacceptably clear.. .
The court's chief justice, John Roberts, once proposed a better way to deal with invidious discrimination on college campuses and in American education in general: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." But that approach was much too clear for this court. It preferred to lay down some more fog cover.
The court's decision on Affirmative Action would better be described as a non-decision. Its approach to these cases, too, might be summed up as To Be Continued.. .
These days the court's decisions are not final because they're fallible; they're fallible because they're not final.