Marriage Bans are About Anti-Gay Animus

I have not studied all of the legislative and campaign history behind the gay marriage bans enacted in Kentucky, Michigan, Ohio, and Tennessee, but if they are anything like what happened in Virginia before passage of the vile Marshall-Newman Amendment or what transpired in Congress before passage of DOMA, the effort was all about anti-gay animus and the desire of Christofascists to permanently denigrate gays and to make us forever inferior under the law.  "Protecting the sanctity of  marriage" had little to do with the real agenda.  This anti-gay animus was analyzed by the Supreme Court in the Windsor ruling and in Virginia, the foul anti-gay rhetoric of Bob Marshall and Ken Cuccinelli helped document the animus behind the Marshall-Newman Amendment.  Now, with the Court taking the appeal from the 6th Circuit, animus will again be prominent in the Court's focus.  A piece at SCOTUS Blog lays out why these marriage bans are all about animus.  Here are excerpts:

Were the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012, including four the Court decided Friday to review, the products of constitutionally repugnant “animus” – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike?  Or, do they represent, as Judge Jeffrey Sutton maintained in the opinion for the Sixth Circuit that is now before the Court, a benign, even admirable, initiative by “people of good faith,” endowed with a “Burkean sense of caution,” to validate a “long-existing, widely held social norm”?  Who are we, Judge Sutton asked, to “indict” millions of voters who supported these mini-DOMAs?

The question of animus will be prominent – perhaps pivotal – in this final phase of marriage litigation.  So far, the arguments made by plaintiffs have been remarkably sterile, emphasizing formal equal protection and due process arguments and failing to say much about how the mini-DOMAs actually came into being.  But such a picture is incomplete.  To fully consider the constitutionality of the remaining anti-marriage laws, we must lift up these proverbial rocks to see what was festering underneath them.

When evidence of gratuitous or irrational intent to harm a group outweighs a law’s purported legitimate justifications, the law betrays an improper purpose and violates equal protection.  As the late Chief Justice William Rehnquist observed in Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was “motivated by a desire to discriminate.”

The Court has demonstrated time again – in Underwood, as well as cases like Mount Healthy City School District Board of Education v. Doyle, Village of Arlington Heights v. Metropolitan Housing Development Corp., Personnel Administrator of Massachusetts v. Feeney, and Romer v. Evans – that in a purpose inquiry, history, circumstances, and objective evidence (both direct and inferential) about the enactors’ intent all matter. 


First, look at the record.  Spend a few minutes browsing news databases for coverage of the mini-DOMA campaigns and it confirms what you knew but may have forgotten: the campaigns were substantially characterized by negative code words, moral judgment, and disparagement (often implicit, sometimes explicit) of gays’ dignity.

A few weeks before Ohioans voted on their mini-DOMA, the Columbus Dispatch reported that Ohio’s secretary of state was “standing by remarks he made comparing same-sex couples with barnyard animals.”  (Judge Sutton apparently missed that report.) . . . . we can find plenty of animus propelling these initiatives if we’re simply willing to see it.

Then, look at the data.  Data from the American National Election Survey on attitudes toward various groups, known as a “feeling thermometer,” show that for much of the period when the mini-DOMAs were debated, Americans had quite frigid feelings toward homosexuals. 

Remember, this was wedge-issue politics.  Anyone who paid even modest attention to politics over the past twenty years knows that gay marriage was, until recently, one of the conservative movement’s most potent wedge issues to mobilize its base and drive up turnout.
Wedge issues are rarely helpful to “earnest and profound debate,” but they are kissing cousins with animus.  Politicians count on voters to react to wedge issues emotionally and reflexively, not with calm nuance and reason.

Query why mini-DOMAs go farther than necessary.  It is one thing for a state to reserve marriage licenses for heterosexuals.  It is another thing, as I have written, to claim to void or nullify marriages created by other states.  Almost all the mini-DOMAs do this, even for long-married couples who are migrating to a different state and did not evade their home state’s marriage laws.

The nearly universal principle of reciprocal state marriage recognition, according to a leading conflict of laws treatise, “provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state.”  To impose such “hideous” burdens on a legally married couple is cruel.  But millions of Americans nonetheless decided it was acceptable to do that to gays and lesbians.

Moreover, if the amendments were simply intended to preserve a traditional definition of marriage, it was unnecessary to also prohibit, as most of them did, civil unions, domestic partnerships, or (in the words of the Michigan amendment) any “similar union for any purpose.”  These amendments permanently barred gays from seeking even some lesser forms of legal recognition for their relationships.  If voters knew what they were doing, then it is difficult to imagine a reasonable, non-animus-based explanation for such overreaching.

Finally, probe the frivolous justifications.  If the mini-DOMAs collectively stand for more than knee-jerk moral judgments by voters, whipped up by activists with their own agenda, then the states now defending them should be able to offer more substantial justifications than the fanciful and logic-defying idea – notably pulverized by Richard Posner, a jurist who took the argument seriously enough to actually think about it – that banning gay marriage somehow channels more children into mom-and-dad households and promotes “responsible procreation” by heterosexuals.  This argument, in one form or another, is pretty much the only substantive purpose that states have offered in post-Windsor marriage litigation.

[A]s a solid body of equal protection jurisprudence has demonstrated, they are often the tip-off that something more unsavory – animus, perhaps? – was actually at work.