Edward I. Koch
Friday, July 4, 2003

What this means is that the fight against racial preferences is, for the most part, over. Of course, any five-to-four Supreme Court decision is subject to being overruled if the complexion of the Court changes. And there will be efforts to continue the battle at the state level, as is happening in California, where there is a referendum that would end the collection of racial data for any purpose. If successful, it would prevent the use of racial preferences.

Those local efforts are probably doomed to failure, however. As a result, we will be burdened with racial preferences, according to Justice Sandra Day O’Connor’s majority decision, for the next 25 years. At that time, Justice O’Connor hopes racial preferences will no longer be needed to assure that a critical mass of minority students will enter the top, most prized professional schools in the country.

Since the number of seats available in these institutions is limited, preferring one student over another, using race or ethnicity as a factor, means another student not of that race or ethnicity will be the victim of discrimination. Caucasians and Asians are not eligible for special assistance.

The United States has engaged in racial preferences, or so-called “affirmative action,” beginning with President John F. Kennedy’s administration 42 years ago. Its proponents believe that race- or ethnicity-based discrimination can only be rooted out by the remedy of reverse racial discrimination.

To disguise the fact that reverse discrimination is involved, they came up with the code word “diversity” and the phrase “critical mass.” It worked. Justice O’Connor says in effect it will be 67 years after Kennedy before such preferences end.

Racial preference (diversity) and quotas (critical mass) will apply to every sector of our society, and we will soon see comparable decisions made in the employment and promotion sector. Code words, however, cannot disguise the basic injustice of favoring one group over another on the basis of race.

The second U.S. Supreme Court decision of this past week – Lawrence v. Texas – is a watershed in the struggle for gay and lesbian rights, and not simply their right to sexual privacy.

The decision, which struck down a Texas statute that criminalized homosexual sodomy, was supported by a majority of justices nominated by Republican presidents. This shows that Supreme Court justices, no matter what their assumed positions are on controversial social issues, can adapt their views to the times. And that’s good.

Scholars who have commented on the Court’s decision have opined that it provides a basis for striking down prohibitions against same-sex marriages, and thereby affording same-sex couples marriage benefits, including tax advantages, now only available to opposite-sex couples.

Two countries, Belgium and Holland, now permit same-sex marriages. A third, Canada, permits such marriages in the province of Ontario, and its prime minister has announced that federal legislation will shortly be introduced with his support allowing such marriages to be performed throughout Canada.

The same will happen here in the U.S., and the sky will not fall. Interestingly, it was in 1962, 41 years ago, that I ran for the New York Assembly on a platform that included eliminating the criminal sodomy statutes in New York. I lost, for a host of reasons, that issue playing only a small part. I am proud of having been in the vanguard.

Perhaps the most poignant case to be decided by the Supreme Court, as reported by The New York Times, came out of Kansas. There, a young man, 18 years old, who engaged in an admitted consensual act of sodomy with a 14-year-old boy, constituting statutory rape, was sentenced to 17 years in prison. Both children were attending a residential school for developmentally disabled children when the act occurred.

Had the 18-year-old boy had a similar experience with a 14-year-old girl under the same Kansas law, the maximum sentence would have been 15 months. He has already served two years and as a result of a direct order from the U.S. Supreme Court, the 18-year-old boy will now be freed. If I could, I would horsewhip both the prosecutor and the judge (figuratively) for having damaged the lives of the two children already burdened with problems beyond their control.

When justice prevails, it is like a miracle. In this case, the miracle worker was the ACLU, which challenged the law.

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