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Equal sign As an attorney and university faculty member it can be painful to hear the word “discrimination” constantly thrown about, always negatively, as if any discrimination, we all readily know, should be instantly condemned and corrected.

In point of fact, we discriminate against people, legally mind you, all the time. We discriminate, moreover, legally all the time against classes of persons. And we discriminate, more-moreover, legally, all the time, against classes of persons, based simply on whom they are, their genetics, things about themselves that they have no control over. And yet, this isn’t the least bit controversial.

Take public university scholarships. Scholarships are a direct and powerful government benefit; they’re monies, monies of potentially exponential value, a force-multiplier of quality of life and status, since that money affects someone’s immediate and future opportunities.

Such scholarships are distributed under a kind of merit system, but don’t let this fool you. That “merit” often amounts to no more than the characteristics God or nature has bestowed upon an individual, gifts provided in our DNA (much like, say some, sexual attributes, orientation, etc., just for example). We may work hard to maximize our capacities, but that big scholarship isn’t coming my way unless my DNA says so. It comes down to who I am, an important part of my identity that I cannot change.

The state, consequently, discriminates against the genetically less intelligent classes of persons by not giving them the same scholarships, benefits, or opportunities as more intelligent classes. Where is the outrage, the moral lecturing as seen in Justice Kennedy’s DOMA majority opinion? Scholarship discrimination certainly “injures” and “demeans” the class of students denied, probably in most cases more than the loss of marriage-like benefits. Why is this not controversial?

The answer, of course, is because there is a common sense reason for it (and it hasn’t been framed as a Civil Rights issue”yet). Benefits are reserved for those who possess the attribute that makes them the most likely to maximize the benefit. Not for certain”a highly intelligent student might squander the scholarship, whereas a certain average student in her stead may have excelled beyond expectations. The simple question is whether, generally speaking, there is a rational basis for the state’s decision to reserve benefits to some persons and not others. Do you see where I’m going with this?

If we now know, based on the discussion above, that the state obviously may discriminate against groups, classes, or categories of persons, for really important benefits, due to characteristics that these persons naturally possess, cannot change, and amount to an important part of their personal and social identities, maybe we would rethink where the DOMA decision freight train is heading.


United States v. Windsor , 570 U.S. ___ (2013)

W. Jesse Weins is a constitutional litigator and Dean of the College of Leadership & Public Service at Dakota Wesleyan University. His work has been referenced by the New York Times and by a U.S. federal district court in the recent “National Day of Prayer” case.

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