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 

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