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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
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Animus versus Moral Opposition: Material and Expressive Considerations
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Tuesday, September 30, 2014
Animus versus Moral Opposition: Material and Expressive Considerations
Guest Blogger
Neil S. Siegel
This post is part of the Symposium on Unconstitutional Animus.
Some
participants in the debate over same-sex marriage are offended by the
suggestion that any state ban is based upon animus. Like Chief Justice Roberts during oral
argument in United States v. Windsor,
they ask incredulously, for example, “So that was the view of the 84 Senators
who voted in favor of [the law] and the President who signed it? They were motivated by animus?”
Others
believe that most, if not all, state bans are based upon animus. They applaud Judge Posner for calling out a
state as “either . . . oblivious to, or think[ing] irrelevant, that until quite
recently homosexuality was anathematized by the vast majority of heterosexuals
(which means, the vast majority of the American people), including by most
Americans who were otherwise quite liberal.”
Baskin v. Bogan, 2014 WL 4359059, at *12 (7th Cir. Sept.
4, 2014). Who is right depends in
part upon the relation between unconstitutional animus and moral opposition to
homosexuality.
Some may think that the outcome of
same-sex marriage litigation turns on this question. For example, in a New York Times column in
late July, Adam Liptak asked whether it may be difficult for the Supreme Court
to invalidate state bans given the findings of certain lower courts that animus
toward gay people played no role in the enactment of some such bans.
I responded in part that the Court does not define animus as
limited to malice or intent to harm—it also understands animus to include expressions
of moral opposition to homosexuality, evidence of which abounds in same-sex
marriage cases. The more important point, however, is that
the Court’s doctrine requires the invalidation of state bans on same-sex
marriage regardless of whether moral opposition is animus.
A proof
of this assertion is straightforward:
1. In Lawrence
v. Texas, 539 U.S. 558 (2003), the Court concluded that the expression of
moral opposition to homosexuality is not a legitimate state interest that can
justify denying gay people equality or liberty.
2. The reason why states prohibit same-sex
couples from marrying is to express moral opposition to homosexuality—to declare
heterosexuality a superior norm (which is the same thing).
3. Therefore, state bans on same-sex marriage
violate the Equal Protection Clause.
The
conclusion follows from the two premises, so it remains to show that the
premises are valid.
Regarding
the first premise, consider these statements from the Court:
·
“[F]or
centuries there have been powerful voices to condemn homosexual conduct as
immoral. . . . [However,] [t]he issue is whether the majority may use the
power of the State to enforce these views on the whole society through
operation of the criminal law. ‘Our obligation is to define the liberty
of all, not to mandate our own moral code.’” Lawrence v. Texas, 539 U.S. 558, 571 (2003) (quoting Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 850 (1992)).
·
“JUSTICE
STEVENS [concluded that] ‘the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice. . . .’ JUSTICE STEVENS’ analysis, in our view,
should have been controlling in Bowers
and should control here.” Lawrence v. Texas, 539 U.S. 558, 578–79
(2003) (quoting Bowers v. Hardwick,
478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
The
Court’s conclusion explains why lawyers charged with defending state bans on
same-sex marriage do not justify them on moral grounds.
Even
so, courts have registered that moral opposition undergirds state bans. In support of this second premise, consider
the following:
·
Congress justified DOMA on moral grounds. See
Windsor, 133 S.Ct. at 2693 (quoting
H.R. Rep. No. 104-664 at 16 (1996)) (“The House concluded that DOMA expresses ‘both moral
disapproval of homosexuality, and a moral conviction that heterosexuality
better comports with traditional (especially Judeo–Christian) morality.’
The stated purpose of the law was to promote an ‘interest in protecting the
traditional moral teachings reflected in heterosexual-only marriage laws.’”).
·
Congress was responding to a 1993 Hawaii Supreme
Court decision subjecting the state’s ban to strict scrutiny under the state
constitution. See Windsor,
133 S.Ct. at 2693 (citing H.R. Rep. No. 104–664, at 12–13 (1996)) (“The House
Report announced its conclusion that ‘it is both appropriate and necessary for
Congress to do what it can to defend the institution of traditional
heterosexual marriage. . . . H.R. 3396 is appropriately entitled the ‘Defense
of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual
couples is a truly radical proposal that would fundamentally alter the
institution of marriage.’”).
·
States that subsequently adopted or affirmed bans
on same-sex marriage were responding to similar developments and had similar
concerns. For example, Virginia’s bans “were
enacted as specific responses to developments in other jurisdictions where
same-sex couples sought the freedom to marry.”
Response
Brief of Harris Class Intervenors, Bostic
v. Schaefer, 2014 WL 31398089 (July 28, 2014). Except for Wyoming, all 31 states still enforcing
and defending their bans have adopted a statute or a constitutional amendment
prohibiting same-sex marriage within the last 18 years.
·
In adopting their bans, states expressed moral
objections. For example, the official
statement in support of California’s Proposition 8 declared: “We should not
accept a court decision that may result in public schools teaching our kids
that gay marriage is okay. That is an
issue for parents to discuss with their children according to their own values
and beliefs.” California
General Election Tuesday, Nov. 4 2008 Official Voter Information Guide, Prop 8
Arguments and Rebuttals.
·
The non-moral justifications that states offer
to justify their bans “ta[x] the credulity of the credulous,” Maryland v. King, 133 S.Ct. 1958, 1980
(2013) (Scalia, J., dissenting). For
example:
Indiana’s
government thinks that straight couples tend to be sexually irresponsible,
producing unwanted children by the carload, and so must be pressured . . . to
marry, but that gay couples, unable as they are to produce children wanted or
unwanted, are model parents—model citizens really—so have no need for marriage.
Baskin v. Bogan,
2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014)). States make such
arguments even as they allow infertile heterosexuals to marry and disallow same-sex couples with adopted children to marry.
·
By contrast, the moral justification for state
bans on same-sex marriage suffers from no under- or over-inclusiveness. The classification fits the justification
perfectly.
Validating
heterosexuality—expressing moral concerns about homosexuality—is the only
conceivable reason why states exclude same-sex couples from the institution of
marriage.
* *
*
Although it makes no material difference to the correct
outcome of marriage equality litigation, there are expressive advantages to
describing opponents of same-sex marriage as moved by moral concerns, not
animus. Such a characterization encourages
constitutional values to evolve—as the Court in Windsor was doing by using federalism as a way station—without
accusing others of bigotry. A moral
characterization also shows respect by describing fellow citizens as they
understand themselves. (One might also,
as Justice Kennedy sometimes did in Windsor,
emphasize harmful effects and social
meanings apart from anyone’s bad purpose.) It is possible to deeply disagree with others
and still show them respect. Other
things equal, that seems preferable to deeply disagreeing and showing them
disrespect.
Neil S. Siegel is a Professor at Duke Law School. He can be reached at: siegel at law.duke.edu.
Posted
8:33 AM
by Guest Blogger [link]
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