In yesterday’s New York Times, Adam Liptak considered the possibility that Justice Kennedy might not be persuaded that state laws limiting marriage to opposite-sex couples reflect unconstitutional animus against same-sex couples. Liptak points to the mostly overlooked concurrence of Judge Jerome Holmes in the Tenth Circuit same-sex marriage decision, Bishop v. Smith. Holmes agreed that Oklahoma’s marriage law violated the fundamental right to marry but rejected the suggestion that unconstitutional animus could be found in the law. Liptak speculates that the concurrence “may foreshadow a problem for gay rights advocates at the Supreme Court” because Justice Kennedy, the likely swing vote in a challenge to state marriage laws, has leaned on animus in major gay-rights decisions like Romer v. Evans and United States v. Windsor. (As Liptak also points out, “There are other paths [to same-sex marriage at the Court], of course, as the winning streak in the lower courts makes clear.”)
I addressed the treatment of animus in constitutional law in a just-published piece in the Supreme Court Review (downloadable at the link as a PDF) entitled “Windsor Products: Equal Protection from Animus,” so I thought I’d add a few thoughts on Judge Holmes’s concurrence and the potential significance of animus in same-sex marriage litigation. I think a decision to strike down a state marriage restriction resting on the animus doctrine would be consistent with, even if not commanded by, the majority’s understanding of the doctrine. For a similar view that uncertainty in the doctrine leaves the outcome open in the Supreme Court, see the illuminating essay by Susannah W. Pollvogt, “Windsor, Animus, and the Future of Marriage Equality,” in the online Columbia Law Review Sidebar. The question is important because, despite lower courts’ focus on the scope of the fundamental right to marry and on conventionally tiered equal-protection doctrines (rational basis or heightened scrutiny), animus could be the doctrinal ground on which Justice Kennedy’s vote turns.
As Judge Holmes points out, traditional rational-basis review does not apply when the Court concludes that animus was present in government decision making. “Animus is not merely an illegitimate purpose: it taints the government’s action,” I argue. “The sometimes far-fetched and hypothesized rationalizations that suffice to sustain a law in ordinary rational-basis cases don’t suffice once animus is detected.” Animus thus has what I call a “tainting effect.” Professor Pollvogt memorably describes animus as “a doctrinal silver bullet.” When animus is present, Judge Holmes concludes, “the law fails.”
As Justice Kennedy describes it in Windsor, the government acts on animus when it aims “to disparage and to injure” a person or group of people. It is “the bare desire to harm a politically unpopular group.” Animus-based government action violates the equal protection principles of the Fifth and Fourteenth Amendments. The doctrine is based on the basic notion that, as I describe it, state action rooted in “[a]nimus is inconsistent with the premises of a well-functioning representative democracy, and violates the basic constitutional precept that every person is entitled to equal protection of the laws.” In fact, no Justice on the Supreme Court has categorically rejected the view that animus is an unconstitutional basis for state action, although they have strongly disagreed about when it is present. What constitutes animus, why government action based on animus is unconstitutional, and whether courts are the proper institution to police animus are large questions that are discussed at length in “Windsor Products.”
Suffice it to say that I think the doctrine is sufficiently well established that on rare occasions it will be available to litigants in all kinds of cases that don’t warrant heightened scrutiny. But it has been especially useful to gay-rights litigants. In fact, at least in the Supreme Court, animus analysis has successfully done the work that arguments for heightened scrutiny of sexual-orientation discrimination have failed to do. “Historical experience, and now two major Supreme Court decisions,” I claim, “support the inference that anti-gay discrimination will often be animus-based.”
The crucial question for Judge Holmes, and potentially for Justice Kennedy, is whether animus against gay couples is present in a state law limiting marriage to the union of one man and one woman. Judge Holmes believes that animus is present only (1) where “laws impose wide-ranging and novel deprivations upon the disfavored group” (a lesson he draws from Romer); and (2) in “laws that stray from the historical territory of the lawmaking sovereign just to eliminate privileges that a group would otherwise receive” (which he draws from Windsor). As thoughtful and welcome as the Holmes opinion is, I think it both unduly cabins animus methodology and misapplies it even on the narrow terms it adopts.
As to the first possible basis for finding animus, Holmes concludes that the Oklahoma ban on same-sex marriage was not “wide-ranging” because it was not an across-the-board denial of rights in the fashion of Romer and was not “unusual” because opposite-sex-only marriage has an “ancient lineage.” One problem with that view is that it limits animus doctrine to the unprecedented and unique context of Romer, when in fact the Court has found animus in legislative classifications affecting much narrower interests, like collecting food stamps (Moreno) or living in a particular zoned area (Cleburne). Another problem is that although marriage has long been limited to opposite-sex unions, codifying the limitation in state constitutions is novel and has been part of a backlash against the increased visibility and rights-claims of gay families. And some of those state constitutional amendments (like Oklahoma’s) have imposed burdens on same-sex couples that go well beyond the status of marriage, foreclosing any legal protection for same-sex relationships under an alternative status like “civil union.” One might say that at least some of the state restrictions are indeed wide-ranging and novel, but Judge Holmes’ analysis does not fully consider this possibility.
As to the second possible basis for animus, Holmes observes that in Windsor one sovereign (the federal government) was interfering in an area (the definition of marriage) that another sovereign (the states) had long controlled. In cases challenging state definitions of marriage, he notes, the appropriate sovereign is simply regulating a matter it has always regulated. On its own terms, this observation is a truism: there isn’t a federalism objection to letting states decide for themselves how to limit marriage. That might be enough to distinguish Windsor‘s particular application of animus doctrine. But Holmes’ error is in supposing that animus doctrine extends only to cases where federalism concerns might be lurking. Instead, the Windsor court cites precedent indicating that any departure from the usual approach to an issue supports an inference of animus.
The deeper problem with Judge Holmes’s approach is that it leaves out large parts of the animus analysis. Animus is not found solely in the acts of wild-eyed lynch mobs, bigots, and haters. It is broader, and distinct, from what those crude caricatures suggest. Based on the quadrilogy of animus decisions from the Court dealing with everything from “hippie” communes to federal marriage policy (Moreno, Cleburne, Romer, and Windsor, plus parts of Lawrence), the outlines of a methodology have begun to emerge. “Determining whether animus materially influenced the government’s act rests on a variety of considerations that are objective in the sense that they do not depend on discovering subjective legislative intent,” I argue in “Windsor Products.” I outline five factors that the animus decisions, especially Windsor, taken together with racial discrimination decisions like Washington v. Davis and Arlington Heights, consider in deciding whether animus is present:
1. the statutory text (textual);
2. the political and legal context of passage, including a historical background demonstrating past discriminatory acts, and a departure from the usual substantive considerations governing the decision, especially if the considerations usually relied upon by the decision maker strongly favor a decision contrary to the one reached (contextual);
3. the legislative proceedings, including evidence of animus that can be gleaned from the sequence of events that led to passage, the legislative procedure, and the legislative history accompanying passage (procedural);
4. the law’s harsh real-world impact or effects, including injury to the tangible or dignitary interests of the disadvantaged group (effectual); and
5. the utter failure of alternative explanations to offer legitimate ends along with means that really advance those ends (pretextual).
In Windsor, I have contended at length, all five of these factors supported the conclusion that DOMA was an act of ill-will toward married same-sex couples.
How might these factors be deployed in a challenge to a state marriage law–either an amendment or a statute–excluding same-sex couples? Let’s consider them briefly.
(1) As to the first factor (text), the sweeping language of a state constitutional amendment might indicate a broad purpose to injure same-sex couples by, for example, extending its prohibition well beyond the status of marriage. That is true in states like Oklahoma (which also vaguely banned “the legal incidents of” marriage for same-sex couples) and Virginia. Many of the state constitutional marriage amendments are shotgun blasts aimed at any recognition of same-sex relationships.
(2) As to the second factor (context), the state’s own historical practice of discriminating against homosexuals would be suggestive about why this particular exclusion was adopted. Such evidence would surely be available in a state like Oklahoma, which has a long history of targeting gay people for state-sponsored discrimination.
(3) The third factor (procedural and/or legislative history) would be especially difficult to apply in the context of a state constitutional referendum banning the recognition of same-sex marriages. However, such evidence was adduced in the Perry litigation regarding the passage of Proposition 8 and was present in the legislative run-up to the Oklahoma constitutional ban, as Liptak notes. In a challenge to a state statute, evidence of legislators’ animus might well be available in the legislative history, where lawmakers’ animus against homosexuals is sometimes on full display (as it was in Congress in 1996). Despite some common and well-taken criticisms of using legislative history, the Court has considered it in animus cases, including Windsor.
(4) The fourth factor (injurious effects) has been extensively briefed and supported by evidence in challenges to state marriage laws around the country. The injury to gay families inflicted by their exclusion from marriage is both tangible and dignitary. And it is enormous.
(5) By the time a court considers the fifth factor (pretextual justifications), it has already been alerted to the strong possibility of animus. The presumption of constitutionality is no longer operative. The court will not accept weak justifications that might suffice in a rational-basis case. Even if states’ reliance on the need to encourage responsible procreation, for example, was good enough to ban same-sex marriages in the ordinary rational-basis case, its thinness as a matter of logic, experience, and evidence supports the conclusion that it is pretextual under animus review. None of Congress’s justifications for excluding same-sex couples from the federal definition of marriage (e.g., responsible procreation and childrearing, moving incrementally on social reform, cost-savings) saved DOMA from animus review in Windsor. It’s difficult to see why analogous or identical justifications in challenges to state marriage limitations should survive animus review, even if they could survive conventional rational-basis review.
In his concurrence, Judge Holmes considers only truncated versions of two of these five factors, numbers two and four. He might be right that state marriage limitations will survive animus review, but the analysis ought to be more comprehensive and complex than he suggests.
It’s tempting to say that none of this matters. Perhaps it is just intramural squabbling among same-sex marriage supporters. After all, every court so far has found a basis for concluding that laws banning gay marriage are unconstitutional. What practical difference does it make which doctrinal route a district or appellate court follows? Windsor put the writing on the wall, one might say. But while every court considering same-sex marriage claims over the past year has relied heavily on Windsor, most of them have not in fact drawn from its primary conclusion that DOMA was unconstitutional because it was based on animus. Instead, they have applied what we might call the supporting conclusions about the damage DOMA inflicted on the dignity, personal choices, and legal rights of married same-sex couples. They’ve used these supporting conclusions to decide that, for example, there is a fundamental right to marry that encompasses the right to choose the sex of one’s spouse.
Despite criticisms that Justice Kennedy’s judicial philosophy is protean, he takes his opinions seriously and tries to be consistent. Windsor is his latest word on the subjects of marriage and animus. It’s certainly possible that he will declare a fundamental right to marry that encompasses gay couples, but that’s not a sure bet given his avoidance of the fundamental-rights formulation elsewhere. It’s possible that he will decide sexual-orientation discrimination should be reviewed under heightened scrutiny, though he’s passed up a few obvious chances to do that so far. And it’s possible that he will say that limiting marriage to opposite-sex couples is not even rationally related to any conceivably legitimate interest of the state, as many lower courts have decided. Yet even the Obama administration did not accept the rational-basis challenge to DOMA.
As Judge Holmes noted, few of the lower courts have followed Justice Kennedy’s lead on animus. The latest brief by gay-marriage advocates in the Seventh Circuit barely mentions it. But the issue may have greater significance in the Supreme Court than it has had in the lower courts so far. Gay-marriage advocates would be well-advised to consider at least the possibility that Justice Kennedy will want to know whether animus is the best explanation for why same-sex couples have been excluded by many states from making the basic to decision to marry.