Same-Sex Marriage Bans: Animus All The Way Down

By Eric Segall

Recently I was asked to join a thoughtful amicus brief in the same-sex marriage cases currently before the Court arguing that the Justices should strike down the bans on the ground that they discriminate on the basis of gender. The reasoning is that the only reason Jim can’t make marry Jack is that they are both men. If Jack were a woman, they could marry (sexual orientation is irrelevant to these bans, at least on their face).

I think the legal arguments in the brief are strong but I declined to join it because I think the brief ignores the reality of what is really at stake in the same-sex marriage debate. Although the bans don’t mention sexual orientation, their goal is quite clearly to reserve for heterosexuals the benefits of marriage. Supporters of these bans know that there is no rush to marry among (and between) one gay man and one lesbian woman, but there is among two gay men or two lesbian women. Denying them marriage is not, as I argue below, some neutral stance towards gays and lesbians, but rather legal animus all the way down.

What is legal animus? In two previous cases involving gay rights (one involving a law prohibiting private, consensual same-sex sodomy and one involving a state constitutional amendment treating gays and lesbians differently than other groups in a state’s political process), the Court found animus where the justifications for the law and the amendment obviously failed to advance any state interests other than the expression of disapproval towards gays and lesbians. In a third case, the Court found animus when a town denied a zoning permit for a group home for the intellectually disabled without producing any plausible justification for the denial other than animosity towards that group. In these cases, the Court found legal animus based mostly on the flimsy and pretextual justifications set forth by the defendants to justify the political decisions, and all three decisions were struck down under the equal protection clause of the fourteenth amendment.

Why did the four states at issue in the current case prohibit gays and lesbians from marrying? These days very few folks answer that question by saying something to the effect that “we don’t like them,” or “engaging in homosexual behavior is a sin.” If those kinds of sentiment were the motivations for the bans, the cases cited above would foreclose their validity under the rule that laws that discriminate against an identifiable group based on nothing more than animus against that group are unconstitutional.

In the court of appeals, the judges who upheld the bans of the four states gave basically two reasons. First, the court held that society has an interest in regulating the consequences of sex (children) and the various rules relating to marriage “create an incentive for two people who procreate together to stay together for purposes of rearing offspring.”

How these purposes are in any way affected by or related to same-sex marriage bans, however, the court did not say. As Mike has previously pointed out, the only possible scenario (and it is incredibly unlikely) is that maybe if too many gays and lesbians decide to marry then heterosexual couples (with children) would decide to forgo marriage so as not to engage in the same behavior as homosexuals. This scenario is both absurd and based on the kind of animus the Court's cases forbid.

Of course, the Sixth Circuit didn't engage in such silliness instead, arguing that rules about marriage generally are rational and thus so are same-sex marriage bans.

What exactly did the Sixth Circuit mean by this analysis? Pursuant to this reasoning, bans on redheads getting married would be upheld because rules relating to marriage are generally rational. I know this sounds crazy but because the court did not articulate a single connection between bans on same-sex marriage and any governmental interest relating to the welfare of children, why would a ban on redheads fail the test? Maybe the court was saying that a gay couple won’t procreate through sex and thus the state has no reason to “subsidize” their sex. The problem, of course, is that the states subsidize heterosexual sex through marriage incentives even when both partners are sterile or will choose never, ever to have children. The legal question is how are sterile heterosexuals different from gays and lesbians for the purpose of the states’ alleged incentive interests, and the answer is they are not (unless we simply like them less).

The second reason offered by the Sixth Circuit was that a State might wish to

wait and see before changing a norm that our society (like all others) has accepted for centuries…. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation… allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.

This rationale would not apply to banning redheads from marriage.

This federalism argument, however, could have applied equally to segregation, discrimination against women, and state restrictions on campaign finance reform. This argument presents no explanation for why the tradition of excluding same-sex couples from marriage furthers a legitimate state interest apart from maintaining disapproval of gays and lesbians or simply denying them the benefits of marriage because … well, we always have.

Conservative NRO writer Ed Whelan has spilled a lot of ink defending the constitutional validity of same-sex marriage bans. He has come up with only three rationales for sustaining the bans: 1) we don’t know what effects allowing gays and lesbians to marry will have on heterosexual marriage (and maybe children): 2) federalism should allow the states to “experiment” with the issue; and 3) nothing in the Constitution prevents states from excluding gays and lesbians from marriage and thus the unelected judiciary should stay out of the issue.

None of these rationales holds up. Neither Ed nor anyone else has ever explained how allowing same-sex couples to wed will effect heterosexual marriages or the children of such marriages. The speculation that it “might” cannot justify denying such an important benefit to an identifiable class of people. If the welfare of children were really at issue, states (and Ed) would be concerned about the children of gay couples who are denied all kinds of social and financial benefits by same-sex marriage bans.

Second, “federalism” values don’t connect the bans to any legitimate state interests any more than such values would allow segregated schools, prior restraints on speech, or limiting campaign expenditures. Appeals to federalism in the individual rights arena, in any event, are few and far between. For example, Ed thinks affirmative action at the state level is unconstitutional despite ambiguous text, contested history, and “federalism values.”

Finally, as far as the Constitution goes, the fourteenth amendment prohibits states from denying to any “person” the “equal protection of the laws.” I am sure Ed would agree that gays and lesbians are “persons”, and he has to agree that preventing them from marrying treats them “unequally.” All he has said is states have a valid reason for that denial but Ed has failed to assert any valid interest that connects the ban to a legitimate state concern. 

There is a difference between legal animus towards an identifiable group as defined in the Court’s cases and outright prejudice against that group. I am not suggesting that the people of the four states whose bans are before the Court or Ed Whelan or anyone else is bigoted against gays. I am saying that there are no valid concerns those states laws address other than a naked value judgment that gays and lesbians are not entitled to the same governmental benefits and societal approval as heterosexuals. In the absence of any rational connection between denying gays and lesbians those benefits and a legitimate state interest, those bans are unconstitutional because they are the products of legal animus.

One last point. My personal views on judicial review lead me to the conclusion that judges shouldn't strike down laws unless those laws are at an "irreconcilable variance" with the Constitution. Laws that single out one specific group for unfavorable legal treatment based solely on legal animus are, as Justice Kennedy has said, "literal" violations of the fourteenth amendment, and same-sex marriage bans fall in the category.