Steve Sanders teaches constitutional law, constitutional litigation, and family law at the Maurer School of Law, Indiana University Bloomington.
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?
Similarly, in a stemwinder of a dissent from the denial of en banc review in the Ninth Circuit, Judge Diarmuid O’Scannlain saw in Idaho’s mini-DOMA only voters deciding to “retain the centuries-old, traditional idea” of marriage after “earnest and profound debate.”
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.
An inquiry about animus does not require that we “indict” citizens who voted for a law, or that we probe their psyches or individual motives. It simply takes seriously the principle that every law is proposed and approved for some purpose (sometimes more than one), and it is a judicial task to identify and assess the purpose(s). 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. A majority of states enacted constitutional mini-DOMAs in a brief fourteen-year window, and so we can consider them as a collective phenomenon. Understanding their purpose requires that we examine the reasons legislators and proponents said they were necessary, the circumstances under which they were enacted, and the lack of coherence between what was said then and how states defend them now.
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. As Michael Klarman writes, they arose from “fierce political backlash” against a few early, favorable state court rulings for marriage equality. Voters were told countless times by their elected officials and other proponents that they must “defend” the “sacred” institution of marriage against “attack” and “threat” by those seeking to “undermine” it. (Note that Dale Carpenter has written that one purpose of the anti-animus principle in equal protection law is to “check the tendency of legislative majorities to be vindictive.”)
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.) A post-election analysis of media messages and voter behavior in California’s Proposition 8 campaign concluded that “anti-gay forces know how to exploit and stimulate anti-gay prejudice…. Recycling a lie as old as Anita Bryant’s ‘Save Our Children’ campaign in 1977, the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side.” Around the same time, an ad produced by the National Organization for Marriage portrayed gay rights as a dark, gathering storm that should make you “afraid” that your own “freedom will be taken away.”
So, 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. In the wake of the largest wave of mini-DOMAs in 2004, two public opinion scholars observed, “While Americans’ warmth toward gay people has increased … a striking fact remains true even in 2004: Many Americans dislike gay people, and they aren’t reluctant to say so to survey researchers.” A 2006 study reported that “ANES respondents have consistently ranked gays and lesbians either last or next-to-last among all demographic groups” since gays were first included in 1984.
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. Wedge issues assume that you already bear hostility toward the group on the other side of the issue, or can be persuaded to do so; they are the demagogue’s bread and butter. Wedge issues become wedge issues because they foment division and tear communities apart.
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.
Further, as I have argued, settling same-sex marriage through constitutional amendments was a strategy to foreclose, not encourage, the normal democratic political process from dealing with the issue.
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.
Face it: voters are no prize. There is an alternative explanation for broad, punitive amendments like Michigan’s: that voters actually didn’t know what they were doing. (Evidence from North Carolina suggests that fewer voters might have endorsed that state’s amendment if they had understood it would also outlaw civil unions.) But if voters haven’t learned and thought about what they’re voting on, then we should hardly praise their efforts as “earnest and profound.”
Indeed, it turns out judicial homilies about direct democracy are difficult to square with what we actually know about voters. In his recent book Democracy and Political Ignorance, Ilya Somin (like Judges Sutton and O’Scannlain, a Federalist Society-certified expert) compiled masses of evidence and drew candid, politically incorrect conclusions about the shortcomings of most voters. “Because voters often lack even very basic knowledge of major public policy issues,” Somin writes, “they will rarely if ever have sufficient knowledge to deliberate about policy alternatives in a sophisticated way.” (Somin notes, incidentally, that “public hostility to homosexuality has been motivated in large part by the false belief that homosexual orientation is caused by upbringing and environment rather than genetic factors.”)
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.
Unless judges are simply turning a blind eye in the name of the “benefit of the doubt customarily given voters and legislatures under rational basis review” (Judge Sutton once again), such post hoc, invented-for-purposes-of-litigation rationalizations are supposed to raise judicial eyebrows. Why? Because, as 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.