Opposing Affirmative Action While Supporting Gay Marriage

In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same thing as believing that the two are unconstitutional. But, as Orin notes, the two are highly correlated. And, for what it is worth, my own reaction to the two cases is indeed that the Court should strike down the Texas affirmative program (though without ruling that all affirmative action programs are unconstitutional), while also ruling that gay marriage bans are unconstitutional because they discriminate on the basis of sex.

UPDATE: It’s also worth noting that the opposite combination of views – supporting affirmative action, while opposing gay marriage – is also not uncommon, at least among African-Americans. Blacks have long been more opposed to gay marriage than whites, though recent Pew survey data suggests that may have changed in recent months. Still, even the most recent poll cited by Pew shows 39% of African-Americans opposing gay marriage. By contrast, African-Americans overwhelmingly support affirmative action in admissions. That means there is a substantial number of blacks who support affirmative action while opposing gay marriage, a number that used to be much larger until very recently.