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.

Principal Drafter of Virginia Constitution Files Brief Backing Gay Marriage

School of Law - University of Virginia

In yet another blow to the religious bigots extremists who spearheaded the passage of Virginia's anti-gay animus inspire Marshall-Newman Amendment, A.E. Dick Howard -  a law professor at the University of Virginia who I recall from my law school days - who was executive director of the commission that drafted Virginia's current constitution has filed an amicus brief with the 4th Circuit Court of Appeals in Bostic v. Rainey that urges the Court to uphold the ruling that the Marshall-Newman Amendment is unconstitutional.  The brief drives home two principal points: (i) the United States Constitution trumps the Virginia Constitution and (ii) the majority does not get to take away the rights of a minority that it doesn't like.    The Virginian Pilot has details.  Here are highlights:

Three constitutional scholars, including the principal architect of Virginia’s current constitution, have filed court papers supporting Attorney General Mark Herring’s decision not to defend the state’s prohibition on same-sex marriage.

Virginia’s gay-marriage ban is the target of what could become a landmark legal case working its way through the federal courts. A Norfolk district judge struck the ban down in February, but delayed implementation of her decision pending an appeal to the 4th U.S. Circuit Court of Appeals.

In a “friend of the court” brief filed with the appeals court Thursday, the three scholars say Herring had not only the authority but the obligation to abandon the defense of Virginia’s same-sex marriage ban once he determined that it violates the U.S. Constitution.

The three scholars say Herring acted properly because two centuries of legal precedent make it clear that the state constitution is subservient to the federal Constitution.

One of the three is A.E. Dick Howard, a law professor at the University of Virginia who was executive director of the commission that fashioned the current Virginia constitution, adopted in 1970. Howard was the principal draftsman of the document.

Also signing onto the brief were two other law professors, Daniel Ortiz of U.Va. and Carl Tobias of the University of Richmond.

Herring took an oath to defend both the state and federal constitutions, and it has been clear since the federal Constitution was ratified in 1788 that it must prevail when there is a conflict, the scholars argue: “Public officials who swear to defend both constitutions owe their first loyalty to the Constitution of the United States.”

Previous attorneys general of both parties have declined to defend state laws that they determined were invalid, just as Herring did, the scholars point out.

“An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the Constitution as the Supreme Law,” they argue. “Virginia’s citizens elect an Attorney General on the expectation that he will exercise his legal judgment in their interest. Attorney General Herring has the authority and the duty to do so here.”

Del. Bob Marshall and other Christofascist extremists, including failed gubernatorial candidate Ken Cuccinelli refuse to recognize what every first year law student knows:  The  U. S. Constitution ALWAYS overrides the state constitution.  

Ken Cuccinell and the Christofascists v Mark Herring in the Virgina Marriage Case

As noted in the prior post, even though the hearing in Bostic v. Rainey is being rescheduled, it is worthwhile to revisit the competing arguments before the Court.  One interesting aspect of the case is that the briefs on file basically will pit the arguments set forth by former Virginia General Ken Cuccinelli (which have been adopted by Michele McQuigg the Clerk of the Prince Willaim County Circuit Court) against those now made by Virginia's new Attorney General, Mark Herring.  Another interesting wrinkle is that George Schaefer, Clerk of the Norfolk Circuit Court, is represented by the firm in which former Governor Bob McDonnell was a member until he was elected Attorney General.  Both Cuccinelli and McDonnell have a documented history of anti-gay bigotry.  In addition to the plaintiffs and the defendants, the other parties filing briefs are (i) The Family Foundation, a vitriolically anti-gay "family values" organization and (ii) five professors, most holding positions with religious affiliated universities with strong anti-gay dogmas. 

Plaintiffs: The arguments of the plaintiffs and, now Attorney General Mark Herring, can be summarized as (a) Marriage is a fundamental that does not exclude same sex couples, (B) the 43 year old ruling of the Minnesota Supreme Court in Baker v. Nelson is not controlling given subsequent court decisions, (B) Equal Protection Clause of the 14th Amendment of the U. S. Constitution applies to ALL citizens, (D) religious based belief and/or animus towards a group does not constitute a constitutional rational basis for discriminatory laws, (E) anti-gay laws are subject to heightened scrutiny by the courts, and (D) the defendants' proffered evidence of "tradition" and alleged preferred child rearing views do not justify anti-gay discriminatory bans on same sex marriage.  In making this argument, the plaintiffs' memorandum of laws laid out the anti-gay animus underlying the Marshall-Newman Amendment.  Here are excerpts from the Plaintiffs' memorandum of law:

12. House Bill Number 751 also included in its “legislative findings” that there are “life shortening and health compromising consequences of homosexual behavior” that inure “to the detriment of all citizens regardless of their sexual orientation or inclination.” Id.

13. In 2004, Richard Black, one of the co-sponsors of House Bill Number 751, publicly stated, “The whole agenda of the homosexual movement is to entice children to submit to sex practices.  Those groups lead children to experiment with potentially fatal sex practices that spread AIDS and other sexually transmitted diseases.” Lustig Decl. Ex. A (The Washington Times, “Gay-Straight” Clubs in Schools Anger Foes, Nov. 17, 2004).

14. In 2004, Robert Marshall, one of the co-sponsors of House Bill Number 751, authored an article in The Washington Post in which he referred to marriage between gay and lesbian individuals as “counterfeit marriage” and stated that the Affirmation of Marriage Act was “needed to resist the agenda of activist homosexuals” because the “danger” they posed was “real.” Lustig Decl. Ex. B (The Washington Post, No “New Jim Crow” in Virginia, July 3, 2004).-

20. Before the Marshall/Newman Amendment was adopted, Virginia Delegate Kathy J. Byron advocated in its favor stating, “By changing the definition of marriage, the family, too, would be redefined, ultimately destroying the traditional family.” Lustig Decl. Ex. D (The Washington Post, Gay Marriage Ban Advances in Va., Jan. 14, 2006).

21. Then-Virginia Senator (now-Attorney General) Kenneth Cuccinelli urged his colleagues to adopt the Marshall/Newman Amendment by claiming “[t]he homosexual left has been on the attack against marriage and family for 40 years,” and that the amendment was necessary for “regaining lost ground.” Lustig Decl. Ex. E (The Washington Post, Va. Senate Backs Ban on Gay Marriage, Feb. 8, 2005).

22. More recently, Attorney General Cuccinelli publicly stated that homosexuality “brings nothing but self-destruction, not only physically but of their soul.” Lustig Decl. Ex. F (The Washington Post, Cuccinelli Basks in Richmond’s Warmer Climate, Feb. 5, 2008).

23. Similarly, Attorney General Cuccinelli has stated that homosexual acts are “intrinsically wrong” and “don’t comport with natural law”; and that homosexual behavior “is not healthy to an individual and in aggregate is not healthy to society.” Lustig Decl. Ex. G (The Virginia Pilot, Steve Shannon for Attorney General, Oct. 26, 2009); Ex. H (Huffington Post, Ken Cuccinelli Loses Petition to Uphold Anti-Sodomy Law, Apr. 10, 2013).

26. Neither Virginia’s Human Rights Act nor its Fair Housing Law prohibits discrimination on the basis of sexual orientation. Va. Code §§ 2.2-3901, 36-96.3.

27. Virginia’s hate crime law does not punish violence against individuals based on their sexual orientation. Va. Code § 18.2-57(B).

28. From 2004, when the Affirmation of Marriage Act was adopted, to today, there have been at least 270 hate crimes in Virginia targeting individuals based on their sexual orientation.  Lustig Decl. ¶ 17 (attesting to tabulation of statistics available at www.fbi.gov).

The plaintiffs the argued that under the ruling in United States v Windsor, such anti-gay animus rendered the alleged rational basis for Virginia's gay marriage ban unconstitutional.  This was followed up in the memorandum of law filed by the Attorney General's Office which stated in part as follows:

The Supreme Court has consistently ruled that marriage is a fundamental right protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. It is among the rights "'of basic importance in our society,' rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." It is no exaggeration to say that marriage is "the most important relation in life." Because marriage is a fundamental right, a state law that "significantly interferes" with that right is subject to "critical examination," not review for whether a mere "rational basis" supports it.

Virginia's law denying the right to marry to same-sex couples cannot escape strict scrutiny on the theory that only "traditional" marriage is "fundamental." The nearly identical argument was rejected in Loving v. Virginia, 388 U.S. 1 (1967) . . . Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable.

Loving cannot be distinguished on the ground, advanced by prior government counsel, that the "core purpose of the Fourteenth Amendment was to guarantee to African Americans equal fundamental rights," a purpose not implicated by Virginia's ban on same-sex marriage. (Doc. 65, Def.'s Reply Mem. at 4.) The Supreme Court rejected such limiting constructions in Zablocki:

The Court's opinion [in Loving] could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry...

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. 434 U.S. at 383-84 (emphasis added) (internal citations omitted).

 Loving rejected the same arguments offered in support of the marriage ban here. "Those who cannot remember the past are condemned to repeat it." George Santayana, The Life of Reason: or the Phases of Human Progress 284 (1920). It is worth observing, therefore, that the arguments raised in Virginia's brief in Loving to defend Virginia's ban on interracial marriage are almost identical to the arguments that have been offered to support Virginia's ban on same-sex marriage... The injustice of Virginia's position in Loving will not be repeated this time.

The arguments for applying heightened scrutiny are compelling, as the United States correctly explained at length in its merits brief in Windsor. For example, "[g]ay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable."26 We also note that the claim that a same-sex-marriage ban does not discriminate on the basis of gender, on the theory that it applies "equally" to men and women, sounds disturbingly like Virginia's theory in Loving that its interracial marriage ban did not discriminate on the basis of race, "because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage," 388 U.S. at 7-8.

Defendants: The arguments of the defendants and homophobic former AG Ken Cuccinelli basically boil down to (A) there is no fundamental right to "homosexual" marriage, (B) the 14th Amendment of the U.S. Constitution is not applicable to homosexuals and was intended for the protection of African Americans, (C) legislation specifically targeting gays is not subject to heightened scrutiny, and (D) the court must uphold the legislative/voter determination that heterosexual marriage is the "optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society."  The Cucinnelli memorandum of law in defense of Virginia's gay marriage ban states in part as follows (I am at a loss as to why Cuccinelli tied the origins of civil law marriage in Virginia to religious beliefs, but he did):

Marriage in Virginia Has Always Been Defined As Between One Man and One Woman. The Act of Uniformity of 1559, 1 Eliz., c.2, required the use of the Book of Common Prayer of 1559 in the Church of England, the church established by law. An Act for the Uniformitie of Common Praier, and Service in the Church, and the Admistracion of the Sacramentes, http://justus.anglican.org.resources/bcp/1559/front_matter_1559.htm. Both the rubrics and the liturgy of marriage required a man and a woman. 

In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that Minnesota's law defining marriage as an institution for opposite-sex couples violated neither due process nor equal protection. Id. at 187. The United States Supreme Court dismissed the appeal for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810 (1972). This resolution is dispositive. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975).

Neither the United States Supreme Court nor any federal circuit court of appeals has held that homosexuality constitutes a suspect class entitled to heightened scrutiny. Instead they have said the opposite.

And same-sex marriage cannot be a fundamental right because by definition a "right" that was first recognized in this country a decade ago is not deeply rooted in our history and traditions. . . . . The traditional definition of marriage must be upheld "'if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.'" Id

Therein lies a fundamental difference between this case and Loving v. Virginia, 388 U.S. 1 (1967). There can be no question that a core purpose of the Fourteenth Amendment was to guarantee to African Americans equal fundamental rights, including the right of marriage. . . . . When Plaintiffs claim that Virginia's law "is also subject to heightened scrutiny under the Equal Protection Clause because it discriminates against Plaintiffs on the basis of sexual orientation," (Doc. 60, 9 of 24), the proposition is simply counterfactual. Marriage is defined in terms of a man and woman, husband and wife, and not in terms of sexual orientation.

Amicus Curiae: In addition to the briefs filed by the plaintiffs and the defendants there are two other briefs filed by supposed amicus curiae, The Family Foundation and five right wing professors.   Not surprisingly given the racists undercurrents of its activities,  The Family Foundation's brief basically makes a states' rights argument that would have done the pre Civil War Southern states proud.  Under its argument, states should be able to do whatever they want when it comes to marriage and, by extension, the the argument suggests that the U.S. Supreme Court ruled in correctly in Loving v. Virginia.  Here's a samplingly:

For this court to rule that the United States Constitution mandates that the State redefine marriage would unnecessarily federalize a question that is undoubtedly within the “residuum” of power reserved to the states. As the Supreme Court has noted: “One of the principal areas in which this Court has customarily declined to intervene is the real of domestic relations.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). To intervene in state regulation of marriage would “thrust the Federal Judiciary into an area previously left to state courts and legislatures.” . . . . There is no reason for this court to depart from this “long established precept” by holding that the federal courts now have the authority to superintend the domestic relations laws of the states.

Beyond the importance of safeguarding local self-government, federalism also advances interstate pluralism. “Interstate pluralism is the feature of our federal system that reflects the ability of each state to establish itself as a distinct community. It entails the ability to make and enforce choices on foundational matters such as fundamental ordering of . . . family relations” and “seeks to protect each state’s ability to create and enforce these fundamental orderings and thereby define its society.”

Interstate pluralism allows states to experiment with various social and legal policies free from interference and to reflect the unique preference and attributes of the state.

The brief filed by the five far right professors is no less bizarre and basically strives to accuse the American Pychological Association and every other legitimate medical/mental health association which has supported same sex-marriage and gay parenting of being patently wrong.  Not surprisingly, the professors' brief cites the now thoroughly discredited Regnerus study (which was financed by - surprise, surprise - right wing anti-gay organizations).  Here are samples of the brief:

A persistent claim by supporters of same-sex marriage is that there is “no difference” in
the outcomes of children raised by a biological mother and father and those who have been raised by two women or two men. That claim has also been advanced by associations like the American Psychological Association (APA). But as recent scholarship indicates, the claim is difficult to support because nearly all of the studies upon which the “no difference” assertion is based are rather limited, involving non-random, non-representative samples, often with relatively few participants. . . . .These and other methodological limitations make the APA’s confident “no difference” conclusion suspect.

With so many significant unanswered questions about whether children develop as well in same-sex households as in opposite-sex households, it remains prudent for government to continue to recognize marriage as a union of a man and a woman, thereby promoting what is known to be an ideal environment for raising children.

Frankly, from all that I have read, the professors' brief is a big, deliberate lie that is being foisted on the Court.  In a perfect world, Judge Wright Allen would hit the professors' counsel from the misnamed Alliance Defending Freedom with sanctions if not contempt charges.

Time will tell how the Court will rule, but the better - and more honest - legal analysis in my view after 36 years of legal experience is on the side of the plaintiffs and Attorney General Mark Herring.