The Supreme Court and Anti-Gay Animus

In its ruling in United States v. Windsor, one issue that went toward prompting the majority on the Court to strike down the portion of the Defense of Marriage Act was the documentation from the Congressional Record and elsewhere that the moving motivation behind the the enactment of DOMA was anti-gay animus.  The Court has held on a number of occasions, including Romer v. Evans in the early 1990's,  that animus towards a group in society does not make an unconstitutional law magically past constitutional muster.  With the Court to hear oral argument next month in the marriage cases out of the 6th Circuit, a brief has been filed by the Mattachine Society of Washington, D.C., that seeks to document the long history of anti-gay animus that has motivated laws limiting the civil rights of LGBT citizens.  A piece in Huffington Post looks at the brief and the ugly history that it sets forth.  Here are highlights:

In April the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People for the American Way Foundation joined religious and civil rights groups on a brief urging the court to reject discriminatory marriage bans and challenging "religious liberty" arguments opposing marriage equality.

One fascinating brief was filed by the Mattachine Society of Washington, D.C. . . . . The Mattachine Society's project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, which is not a permissible justification for discrimination. Chief Justice John Roberts' dissent from the Supreme Court decision in Windsor, which overturned the key section of the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence -- he waved it away as "snippets of legislative history" -- to demonstrate that DOMA's purpose was to "codify malice." Added Roberts, "I would not tar the political branches with the brush of bigotry." 

There's no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society's brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover's FBI and other law enforcement agencies, investigated people suspected of sexual "perversion" and robbed them of their federal jobs and careers. 

From the amicus:

For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time -- from concerns about national security to code words, such as "suitability" -- but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality. 

Animus, therefore, was a culture. And with that culture came a language. For decades, government officials referred to homosexuality in official, often highly confidential or privileged communications, as "unnatural," "uniquely nasty," "immoral," "deviant," "pervert[ed]," and an "abomination."

The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine's Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Malloy to Charley Johns, the chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship. 

The Mattachine Society brief ends with an appeal to the Supreme Court's history of addressing anti-gay animus:

For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: "homo," "sexual deviant," "pervert," "abomination," "uniquely nasty," and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans.. . . .

It was the courts -- and in the case of Dew, this Court -- that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. See, e.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality.

 In a nation that claims to have religious freedom for all, no one should have their CIVIL rights limited merely because they do not conform to Christofascists beliefs and sensibilities.  No one.