By John S. Rosenberg
Those of us who were disappointed when a divided Supreme Court upheld the distribution of burdens and benefits based on race in Grutter are hopeful that decision might be overturned -- or that at least its most deleterious effects might be reined in -- when the Court revisits affirmative action next fall in Fisher v. University of Texas. It would be a mistake to assume, however, as many do, that the worst-case scenario is the possibility that racial preferences in admissions and hiring might remain legal. If this administration's arguments about the unprecedented and virtually (or even actually) unrestrained power the government possesses are upheld -- either in currently pending litigation or by a future Supreme Court with new justices appointed by a re-elected President Obama-- then "diversity"-justified discrimination could actually become mandatory.
Consider, first, the administration's view of government power. Twelve Catholic bishops, the Archdioceses of New York and Washington, Notre Dame, Catholic University, Catholic Charities and the Consortium of Catholic Academies -- all told, 43 plaintiffs in 12 concurrently filed lawsuits -- have charged the Obama administration with trampling their religious liberty by requiring them to finance or enable behavior that violates their religion. Both the Washington Post and the Wall Street Journal covered the lawsuit on their May 22 front pages; the New York Times buried it on p. A17. They charge, both implicitly and explicitly, that the government now refuses to recognize any limits to its power, that it does not have to follow the rules that formerly restrained it.
The complaint of the Catholic leaders and organizations is thus based on something more fundamental than their opposition to being forced to pay for various contraceptive services. "'The government," the Wall Street Journal reports, "'cannot justify its decision to force Notre Dame to provide, pay for, and/or facilitate access to these services in violation of its sincerely held religious beliefs,' Notre Dame's lawsuit argues. 'If the government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the government's power."'
Harvard law professor Mary Ann Glendon agrees that the dispute pitting Catholic universities and bishops against the government is not fundamentally about their resistance to the Department of Health and Human Services' "sterilization, abortifacient and birth control mandate." Much more is at stake, she writes, "than the mission of all churches, including the Catholic Church, to provide social services like health care and education to everyone regardless of creed, and to do so without compromising their beliefs. At the deepest level, we are witnessing an attack on the institutions of civil society that are essential to limited government and are important buffers between the citizen and the all-powerful state."
The Catholics' argument that the Obama administration recognizes "no apparent limit to the government's power" to regulate religious institutions echoes the argument of the state attorneys general and others who are challenging the individual mandate at the heart of Obamacare. "If Congress can require individuals to buy or otherwise obtain and maintain health insurance simply because they may be said to impact commerce by their very existence, without regard to any particular activity in which they have chosen to engage," as two critics of Obamacare wrote in the Wall Street Journal, "then there is no limit on federal power."
The first line of the Introduction to the respondents' brief filed by the attorneys general of 26 states opposing Obamacare is the assertion that "The individual mandate rests on a claim of federal power that is both unprecedented and unbounded...." If that mandate is upheld, it asserted several pages later, quoting Marbury v. Madison, "then there is nothing left of the principle that Congress' powers 'are defined, and limited.'" An amicus brief filed by the Cato Institute and signed by 14 organizations and 333 legislators from 17 states emphasizes the same point -- that "the individual mandate crosses the fundamental line between limited, accountable constitutional government and unlimited power cabined only by Congress's political will--which is to say, not cabined at all."
If the Catholic universities and bishops and the attorneys general of a majority of the states are justified in their fear of an "unprecedented and unbounded" expansion of state power, then a victory for the government in the pending litigation would threaten considerably more than Libertarian desires to be left alone and one religious denomination's sexual attitudes that many consider quaint and outmoded. Those associated with both secular and public universities, in short, would be self-defeatingly short-sighted to think they would be unaffected by government victories in these cases. "Thanks to President Obama," as former Arkansas governor and still Baptist minister Mike Huckabee recently told the Conservative Political Action Conference, "we are all Catholics now."
There is no reason to assume, however, that future mandates would be limited to the arena of sex and gender of particular concern to Catholics. "If the Supreme Court holds that diversity is a compelling interest," I wondered in a January 2003 blog entry when Grutter was pending but had not been decided, "would the federal government, states, counties, cities, et al. be, well, compelled to provide it?" And several months after Grutter came down I asked again, Is "Diversity" Mandatory? "Everyone agrees that nothing in the Supremes' recent Grutter decision allowing racial preferences makes those practices mandatory," I noted the conventional wisdom with some trepidation, but "I wonder if everyone is right."
If the individual mandate is upheld, if the Catholics' complaint is rejected, and if this or a future Court continues to hold that the need for pigmentary "diversity" is compelling, I fear that everyone might well be proved wrong. The current Obamacare and contraception cases, of course, involve an expansive reading of the government's power under the Commerce Clause, and it will be argued that my fear is unjustified because affirmative action has nothing to do with commerce.
Really? Anyone making that argument must have forgotten the fact that the Civil Rights Act of 1964 "was passed under the Commerce Clause in order to allow the federal government to charge non-state actors with Equal Protection violations, which it had been unable to do up to that point because of the Fourteenth Amendment's limited application to state actors." See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
If "diversity" is as central to the mission of higher education and if the creation of an educated "diverse" workforce is as necessary to our ability to survive in the always-cited "global marketplace" as its proponents endlessly claim, then surely deciding who gets access to selective colleges has as much of an impact on commerce as an individual's decision not to buy health insurance.
Lawyerly deconstructing (or more accurately, reconstructing) the meaning of the Commerce Clause, however, largely misses the point, which is that modern liberalism, worshiping the state with an almost religious zeal, recognizes no Constitutional limits on governmental power to accomplish liberal goals even as it offers faintly absurd Constitutional objections that offend common sense to all efforts to restrain its ambitions. Recall, for example, that six years before the Supremes held that "diversity" is a compelling interest the ACLU, NAACP, AFL-CIO, and numerous other liberal organizations actually filed a lawsuit claiming that California's 2007 Prop. 209, which amended the state Constitution to prohibit discrimination against or preferential treatment of individuals based on race or ethnicity, violated the 14th Amendment's Equal Protection Clause!
That argument was virtually laughed out of court, even by the very liberal Ninth Circuit. "To hold that a democratically enacted affirmative action program is constitutionally permissible because the people have demonstrated a compelling state interest is hardly to hold that the program is constitutionally required," the Court declared. "The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.... 'It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.'"
What was far-fetched and paradoxical in 1997, however, seems far less so today, and I believe could become an imminent threat in the not so distant future. Since "diversity" is "compelling," many liberals insist, why shouldn't it be compelled? Kweisi Mfume, president of the NAACP, claimed in a speech on Martin Luther King's birthday in 2004 that "the NAACP and others are preparing lawsuits against every college that refuses to abide by the existing affirmative action laws." More ominously, the ACLU and its storm trooper allies in BAMN (Coalition to Defend Affirmative Action, Integration, & Immigrant Rights And Fight for Equality By Any Means Necessary) challenged Michigan's Proposition 2, modeled on California's Proposition 209, with exactly the same argument that the Ninth Circuit rejected in 1997. This time, however, a panel of the Sixth Circuit agreed, a decision that the full circuit is currently reviewing.
Those who want to overturn or rein in Grutter's acceptance of racial discrimination to promote "diversity" are focused, as they should be, on Fisher v. University Texas, but the possibility, even probability, that the obnoxious core Grutter might survive Fisher may not be the most menacing potential threat on the horizon. It is a short step indeed, not even a slippery slope, from arguing that the 14th Amendment prevents the citizens of a state from prohibiting racial discrimination to arguing that it compels them to produce "diversity" in their universities. Given the extravagant claims for governmental power made by modern liberals and embraced by the current administration, those who fear that an administration eager to impose Obamacare's individual mandate on everyone and conscience-offending mandates on Catholics would also be more than willing to impose a "diversity" mandate on higher education if they're given half a chance and are not just whistling Dixie.
John S. Rosenberg blogs at Discriminations.