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Supreme Court to Decide Whether Affirmative Action and Gay Sex Are Legal

US Supreme Court justices announced yesterday they have decided to rule on whether affirmative action programs in universities and professional schools are constitutional.

Justices will review two cases challenging the University of Michigan’s consideration of race to ensure a diverse student body for its law school and undergraduate program.

The stakes are high. The court could prohibit affirmative action programs at all universities, public and private, across the country. The court could allow the programs to continue. Or, the court could pronounce new standards for evaluating programs on a case by case basis.

The court’s announcement is a victory for the conservative legal advocacy group based in Washington, D.C., the Center for Individual Rights. The Center opposes affirmative action and helped recruit the white plaintiffs in the two Michigan cases.

Barbara Gunter, applied to the University of Michigan Law School and was rejected. Jennifer Gratz and Patrick Hamacher applied to the undergraduate program and failed. The plaintiffs are arguing the admission of black and Hispanic students with similar or lesser academic records violates the constitutional guarantee of equal protection.

The US Court of Appeals for the Sixth Circuit upheld the law school’s admissions program earlier this year by a vote of five to four. The Federal District Court in Detroit upheld the current undergraduate admissions program two years ago, but found an earlier admissions program unconstitutional.


  • Shanta Driver, national coordinator for the Coalition to Defend Affirmative Action, Integration and Fight for Equality by Any Means Necessary.

The U.S. Supreme Court also announced Monday it will hear a case challenging the constitutionality of Texas’s “Homosexual Conduct” law.

The law makes it illegal for consenting gay couples to have sex ­ even though it is legal for a man and a woman to have oral and anal sex in Texas.

In this case as well, the stakes are high. The Supreme Court could not only strike down the Texas law, but it could also overturn its own notorious 16-year-old Bowers v. Hardwick ruling. In that case, the Supreme Court ruled states have the right to criminalize sodomy in the privacy of one’s own home — on the grounds of public morality.

The Texas case was brought forward by Lambda Legal on behalf of John Lawrence and Tyron Garner. The two men were arrested in 1998 in Houston in Lawrence’s home. Responding to a false report, police found the men engaged in private, consensual sex. They were jailed overnight and later convicted. They were forced to pay fines. Now they are considered sex offenders in several states.

In addition to Texas, Kansas, Missouri and Oklahoma, and Puerto Rico all criminalize consensual sex between gay people. Nine states have consensual sodomy laws that apply both to straight and gay adults. (The states are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah.)


  • Susan Sommer, supervising attorney at Lambda Legal; she will be litigating the Supreme Court case. In July, she helped to strike down Arkansas’ law banning sex between people of the same sex. Lambda Legal is the nation’s oldest and largest legal organization dedicated to lesbians, gay men, bisexuals, transgendered people, and people with HIV or AIDS.

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