Balkinization: Unconstitutional Animus: Carpenter Responds to Siegel

Unconstitutional Animus: Carpenter Responds to Siegel

Guest Blogger

Dale Carpenter

This post is part of the Symposium on Unconstitutional Animus.

From Congress to state houses, many legislators opposing same-sex marriage have acted based on what they openly claimed were simple matters of right and wrong—morality. One traditional moral edict, as Professor Siegel notes in his contribution to this symposium, is that homosexuality is wrong, immoral, sinful, unnatural.

What we call morality is guided by experience. Morals reflect human learning and history. They evolve. They adjust. They are critiqued and revised. Moral judgments often arise from an unstated and complicated calculation about harm.

Not every law prohibiting or limiting some activity for what are said to be moral reasons reflects animus against the people who engage in it. One might condemn as immoral the possession of guns, or running a casino, or using marijuana. That doesn’t make every effort to ban guns, to prohibit gambling, or to criminalize drug usage a product of animus against gun owners, gamblers, or drug users. Each of these enactments would have a plausible connection to concern about harm independent of ill will toward the people who engage in these acts. None of these prohibitions would run a serious risk that they were simply expressions of spite against the people who engage in the prohibited behavior.

But when experience and empirical learning demonstrate that the feared harm undergirding a “moral” view is baseless, a continued moral condemnation expressed in law is likely to be an animus-based act. It is a prejudice, an unthinking and anachronistic holdover from an earlier time.

The moral condemnation of homosexuality has typically rested on hysterical claims about homosexuality—claims I have argued were rife in the congressional debate over DOMA—that have turned out to be baseless. Experience and empirical learning have discredited myths about homosexuals as sick, maladjusted, contagious, subhuman, dangerous, and predatory. Same-sex couples have the same capacities and desires for love, affection, and commitment as opposite-sex couples.

To say that the moral condemnation of homosexuality enacted in a broad and unprecedented law like DOMA is impermissible animus is not the same as saying that all reasons for rejecting same-sex marriage are animus-based. In principle, a legislature may decline to pass same-sex marriage legislation in part because of uncertainty about the consequences of change to a social and legal practice as important as marriage. The legislature may prefer to take things slowly. A general preference for incremental change, when other indicia of animus are not present, is surely not animus. The converse is also true: merely reciting a preference for slow change (or morality) when other indicia of animus are present can’t exempt a law from constitutional attack.

As I see it, the focus of animus doctrine is not on the bad nature of the person who supports legislation. The issue in Windsor was not whether a belief in marriage as only the union of one man and one woman is bigoted. It was whether, in context, the affirmative decision by Congress in 1996 to select one class of potential future marriages for second-class status reflected animus against the persons entering those marriages.

This characterization of the Windsor holding may not ease the hurt feelings or quiet the indignation of traditional-marriage supporters, of course. But the insult to them, if an insult at all, is not unique to an animus holding. An alternative holding based on heightened scrutiny of sexual-orientation classifications would have informed them that traditional sexual morality is akin to race-based discrimination. A rational-basis holding resting on the irrelevance of the means (denying federal recognition to married same-sex couples) to the stated ends (inter alia, encouraging responsible procreation) would have suggested that they suffered a serious cognitive failure verging on insanity when they urged passage of DOMA.

So I’m not quite convinced, despite Professor Siegel’s argument, that delegitimizing anti-gay morality in constitutional law is a kinder rejection than calling out the government’s animus against gay couples. There is no nice way to tell people that policies they have fervently supported are unconstitutional.

Dale Carpenter is a Professor at the University of Minnesota Law School. He can be reached at: dalecarp at umn.edu.

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