Balkinization
an unanticipated consequence of
Jack M. Balkin
Balkinization Symposiums: A Continuing List
E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
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)
Recent Posts
Animus versus Moral Opposition: Material and Expressive Considerations
![[Powered by Blogger]](https://lh3.googleusercontent.com/blogger_img_proxy/AEn0k_umf-oOEpxKOGcaG6vSf8YIqYnYbYksTQ0FNSY3qWzUjlG-gGa1w_1FHonAhfYoXY-GCbnOLjhzJIs2XfuXTeCS5SaYaZUfaF-JWvq2E8ug=s0-d){kind=small}
Just A Few Blogs
ACS Blog
Alas, a Blog
Althouse
Arts and Letters Daily
Atrios (Eschaton)
Bill of Health
Buzzflash.com
Buzz Machine
Cato at Liberty
Juan Cole (Informed Comment)
Concurring Opinions
The Constitution in 2020
Corrente
Crooked Timber
Daily Howler
Daily Kos
Dana Boyd
Brad DeLong
Digby (Hullabaloo)
Discriminations
Daniel Drezner
Kevin Drum (Mother Jones)
Electrolite
En Banc
Eunomia (Daniel Larison)
Fafblog
Michael Froomkin (Discourse.net)
GovLab (Beth Noveck)
Rick Hasen (Election Law)
History News Network
How Appealing
Ignatz (Sam Heldman)
The Importance of (Ernie Miller)
Infolaw
Instapundit
International Economic Law and Policy Blog
IntLawGrrls
Jacob Levy
Jesus' General
Jurisdynamics
The Kitchen Cabinet
Mark Kleiman
Law Blog Central
Larry Lessig
Lawyers, Guns and Money
Liberal Oasis
Brian Leiter's Law School Reports
The Leiter Reports
Marginal Revolution
Megan McArdle
Memeorandum
Metafilter
Mirror of Justice
The New Republic
Newseum
No More Mister Nice Blog
Brendan Nyhan
Opinio Juris
Orcinus
The Originalism Blog
Pandagon
Passport (Foreign Policy)
Overcoming Bias
Political Animal (Washington Monthly)
Political Theory Daily Review
Political Wire (Taegan Goddard)
The Poor Man
Virginia Postrel
Prawfsblawg
Public Reason
Jonathan Rauch
Raw Story
Redstate
ReligiousLeftLaw.com
Reporters Committee For Freedom of the Press
Reproductive Rights Blog
Rothman's Roadmap to the Right of Publicity
SCOTUS Blog
Seeing the Forest
Clay Shirky
The Shifted Librarian
The Situationist
Larry Solum (Legal Theory)
Andrew Sullivan
Talking Points Memo
Talk Left
Tapped
Tbogg
TechPresident
The Paper Chase (Jurist)
Tom Paine
Tom Tomorrow (This Modern World)
Eve Tushnet
Uggabugga
University of Chicago Law School Faculty Blog
Unqualified Offerings
The Volokh Conspiracy
War and Piece (Laura Rozen)
Wampum
Oliver Willis
Wonkette
Written Description
Matthew Yglesias
Yin
Your Choice of Feeds
1. XML
powered by
2. Atom Feed
3. RSS 2.0
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]
Books by Balkinization Bloggers
Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024)
David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024)
Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024)
Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023)
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
.jpg)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
Balkin.com homepage
Bibliography
Conlaw.net
Cultural Software
Writings
Opeds
The Information Society Project
BrownvBoard.com
Useful Links
Syllabi and Exams
