Many of those who believe same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is denied.
—Obergefell v. Hodges (2015)
On June 26, 2015, the Supreme Court decided in Obergefell v. Hodges1 that the Constitution protects the rights of same-sex couples to marry. Obergefell had been anxiously awaited by both sides in the same-sex marriage debate. Advocates for same-sex marriage hoped that the case would mark the triumphant culmination of the two-decade quest for marriage equality. Conversely, opponents hoped that the Court would reverse the wave of lower court decisions granting those rights and return the issue to the political arena, where the impact of the Court’s decision might similarly reverse the political tide that had been moving against them. In Obergefell the Court made its choice.
Clearly, Obergefell was a watershed case in terms of its result. But for our purposes the case is important for its impact on the Court’s evolving animus doctrine. That doctrine helped set the stage for the Court’s decision. To be sure, the Court relied heavily on its understanding of due process liberty, as that liberty had been explained and vindicated in a previous gay rights decision, Lawrence v. Texas.2 However, aside from Justice O’Connor’s separate concurrence (discussed in Chapter 4), Lawrence did not explicitly address the animus concept, even though the majority acknowledged how the Texas law “demeaned” the existence of gays and lesbians by criminalizing their intimate conduct. But Obergefell also relied on Romer and Windsor, the two most recent sexual orientation animus cases the Court had decided (and the subjects of much of this book’s analysis). Indeed, the Court ultimately held that same-sex marriage bans violated due process and equal protection. Even more fundamentally, in writing the majority opinion for the five-justice majority, Justice Kennedy intricately interlaced liberty and equality in a way that made those equal protection cases as important as the liberty precedent in Lawrence. And with those equality cases came along the concept of animus—albeit in a potentially new way.
At one level, Obergefell’s analysis is straightforward. After recognizing the importance of marriage as a “fundamental” due process right, Justice Kennedy then explained why the social importance of marriage was promoted, rather than eroded, by the inclusion of same-sex couples into the institution. He noted that marriage was understood as a crucial aspect of personal autonomy, a two-person union “unique” in our society, a vehicle for raising children, and “a keystone of the Nation’s social order.” Same-sex couples, he concluded, sought entry into the institution of marriage to promote exactly these interests.3
How did animus come into play? As we’ll see shortly, the Court’s animus analysis arose most prominently when the Court turned to the equal protection part of its discussion. But we can already see important aspects of that analysis in the first part of the opinion, focusing on due process. After concluding that same-sex couples satisfy the four reasons he identified as justifying marriage’s status as a fundamental right, Justice Kennedy concluded that “[t]he limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Thus, the marriage bans imposed harms that went beyond whatever material losses flowed from denial of the right to marry. Instead, they imposed deeper harms: “stigma and injury of the kind prohibited by” the Constitution.4
But what did this conclusion say about same-sex marriage opponents? Should we brand them as “stigmatizers,” who unfairly or cruelly seek to “injure” same-sex couples? Not so fast. As one might expect from a judicial opinion addressing a delicate culture war issue, one side of which finds its justifications in deeply held religious belief, Justice Kennedy did his best to soften the sting of his conclusion:
Many of those who believe same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is denied. Under the Constitution, same-sex couples seek in marriage the same treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.5
We have seen versions of this argument already. Recall Cleburne. In that case the Court faulted the city for catering to neighbors’ dislike and fear of the intellectually disabled would-be residents of the group home. Recall also Palmore v. Sidoti, a case Cleburne cited, which we noted briefly in our Cleburne discussion. In Palmore the Court rejected a family court judge’s decision to award a child to one divorced parent, which that judge had based on the rationale that the other parent’s interracial relationship would subject the child to harassment. In both of these cases, governmental responsiveness to private biases tarred the state with those same biases and thus rendered the state’s action unconstitutional.
Of course, here the private “bias” was not bias at all—at least according to Justice Kennedy. Instead, he described anti-same-sex marriage views as based on “decent and honorable” premises. Still, governmental responsiveness to even such honorable views—that is, enacting such views into “public law and policy”—remained unconstitutional. In the Court’s words, such responsiveness “put[s] the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is denied.”
In this sense, Obergefell takes a step beyond Cleburne (and Palmore). While those cases reject governmental responsiveness to illegitimate private biases, Obergefell rejects governmental responsiveness to private views, even “decent and honorable” ones, if they have the effect of irrationally excluding a group from accessing a fundamental right such as marriage. The nature of the right at stake—as fundamental or non-fundamental—is clearly crucial in this analysis. Justice Kennedy began his analysis by acknowledging the fundamentality of the right to marry, which in turn formed the backdrop for his inquiry into whether inclusion of same-sex couples would erode that institution. His conclusion that same-sex couples sought to marry for reasons that promoted, rather than eroded, the institution of marriage then led him to conclude that their exclusion from that fundamentally important institution “imposes stigma and injury of the of the kind prohibited by” the Constitution.
Justice Kennedy’s characterization of the harm same-sex marriage bans imposed is telling. He described that harm as expressive (“demeaning” and “stigmatizing”) as well as material (“injuring”). It thus went beyond the mere frustration or loss that would occur if the excluded group was the victim of a garden-variety irrational classification—that is, one that did not implicate a fundamental right. His use of strong words—“demeaning,” “stigmatizing,” and (in relation to the children of such couples) “humiliating”6—suggests that those laws deem same-sex couples as, literally, less than other citizens. A decision with such effects is unconstitutional because government has no business demeaning and stigmatizing—at the very least, not without a plausible public-welfare justification.7 This may not be exactly the same as animus. But when we recall that the foundation of the anti-animus idea is the principle that government has no business imposing burdens on persons simply in order to burden them, we can see how a law that “demeans” and “stigmatizes” comes close to one that we can legitimately describe in those same terms.
Our discussion so far has focused on Obergefell’s due process analysis. But the Court also explicitly addressed equal protection. Given that animus doctrine has largely focused on equal protection, it is important for us to consider the Court’s analysis of how states’ same-sex marriage bans implicated equal protection.
After engaging in the due process analysis we have focused on up to now, the Court then turned to equal protection. It discussed several doctrinal areas, in particular those relating to marriage, to note how due process and equal protection claims had often informed and reinforced each other. It concluded that analysis with the following observations:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.8
Consider the two italicized sentences, which form the core of the Court’s application of equal protection principles to the same-sex marriage issue.9 In the first sentence, the Court recognized that the demeaning effect of the states’ same-sex marriage bans flowed, at least in part, from the history of discrimination governments had visited on gays and lesbians. In the second, it repeated its earlier conclusion, from its due process analysis, that those bans should be understood not simply as “innocent irrationality”—that is, irrational discrimination that had no particular effect aside from its denial of the material benefit at issue. Instead, those bans had broader effects: They “disrespect[ed] and subordinate[d]” same-sex couples.
In using these two words, the latter of which arguably goes significantly beyond the “mere” “demeaning” he found at the conclusion of his due process analysis, Justice Kennedy echoed the central idea of animus doctrine. To be sure, he never used that word in Obergefell. But if animus reflects what this book has argued it does—that is, if it reflects the disadvantaging of a group for no public purpose—then describing a law as “subordinating” a group comes as close to animus as one can get without using the word. After all, subordinating a group is the very definition of disadvantaging it simply to disadvantage it—and thus it is effectively the consequence of a governmental body acting on the “bare desire to harm” condemned by Moreno and the subsequent animus cases.
The Court’s equal protection reasoning reveals several lessons about the state of animus doctrine today. First, it makes clear that it matters whether a burdened group has been the victim of past discrimination. Until Obergefell, one might have been forgiven for reading the animus cases and thinking that such history is irrelevant to animus doctrine. Indeed, as we saw in Cleburne, the Court’s use of animus substituted for a holding that the intellectually disabled constituted a suspect class—a decision that itself turns in part on whether the given group has suffered from such history. But in determining whether a particular exclusion “works a grave and continuing harm,” Obergefell expressly stated that history does matter.
This recognition of the role played by larger social reality—here, the long-standing anti-gay discrimination state governments have imposed—points animus doctrine back toward traditional suspect class analysis. Suspect class analysis always worried about whether it was a historically politically unpopular group that was suffering discrimination. Animus doctrine, at least up to now, has not—at least not in practice.10 Obergefell, however, made that connection. In recognizing the common relevance of history to both animus and suspect class doctrine, Justice Kennedy has reminded us that both of these strands of equal protection law aim to uncover the same constitutional sin: discrimination that simply harms groups, without advancing the public good. History matters to that inquiry.
Second, the italicized language from the quote above makes it clear, if it was not already, that the concept of animus means more than subjective bad intent. We have seen this already. To repeat a point I have made several times now, the city council in Cleburne was not itself accused of harboring dislike of the persons to whom it denied the housing permit; similarly, the family court judge in Palmore was not accused of being a racist. Instead, those officials’ responsiveness to private prejudices was enough to taint their actions with the stain of unconstitutionality. We have also seen this in Romer: Even though the Court eventually concluded that Amendment 2 was motivated by animus, it reached that conclusion indirectly, through a process of elimination, and thus avoided the need to directly accuse the people of Colorado of harboring bad motives.
Windsor allowed the Court to return to the idea of subjective bad intent. But Obergefell did not provide as easy a case for finding such intent. Windsor involved a challenge to one statute, enacted by one legislature (Congress) whose subjective motivations could at least be examined. By contrast, Obergefell considered challenges to several states’ laws banning same-sex marriage—and, as a realistic matter, to the laws of every state that had not yet legislatively authorized it. Short of concluding that all of those states had been infected with similar subjective bad intent, it was simply impossible for the Court to reason in Obergefell as it had in Windsor.
There was also a second difference between the two cases. It was one thing for Windsor to reason that the extreme oddity of Congress enacting a broadly applicable marriage law raised justifiable suspicion that something inappropriate was afoot. But Windsor’s very observation that marriage was an institution traditionally regulated and defined by states took that argument off the table in Obergefell. In other words, if what justified the Court’s suspicion in Windsor was the fact that it was Congress, not the states, enacting a general marriage definition, then what ground for suspicion existed in Obergefell, where the challenged laws were state definitions of marriage? All that was left was the realization that, at least for many people in many states, understanding marriage as an opposite-sex union reflected “decent and honorable religious and philosophical premises.” How could such understandings reflect the subjective dislike—indeed, what we can fairly call the “prejudice”—that sparked the enactment of the food stamp law in Moreno, the housing permit denial in Cleburne, and the Defense of Marriage Act in Windsor?11
Thus Obergefell could not be decided by an easy (if perhaps disrespectful) reference to legislatures’ (or constituents’) subjective bad intents. Nevertheless, throughout his opinion Justice Kennedy used strong language, describing the same-sex marriage bans as “demeaning,” “stigmatizing,” “injuring,” and “subordinating” same-sex couples and “humiliating” their children. If not subjective bad intent, what could justify that stridency?
As we saw earlier in this chapter, part of the answer lay in the fundamentality of the marriage right. But there may be an additional answer, one that not only connects equal protection and due process but, more relevantly for our purposes, connects animus doctrine with constitutional individual rights more generally. Justice Kennedy cares about dignity. He used that word three times in his Lawrence opinion and a full nine times in Obergefell. Without taking the time and space to parse each usage, the sense one gets is that, for Justice Kennedy, “dignity” refers to the status one has when one is able to develop one’s own personhood as one wishes. For example, he described “intimate choices that define personal identity and belief” as “central to individual dignity.” More concretely, he stated that older laws that denied women equal rights in marriage “denied the equal dignity of men and women.” Most relevantly to our focus, he wrote that “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”12
Thus, dignity matters to Justice Kennedy. It should also matter to us, as we consider what Obergefell contributes to animus doctrine. If, as the above quotes suggest, the idea behind dignity is that it reflects respect for the person as a moral agent, able to make choices that define her own life, then denial of dignity is surely implicit in laws that treat persons as less than equal human beings. As we have seen throughout this book, a common feature of the animus cases is that they feature that denial of equal human status. To be sure, the material deprivations may be major (as in Romer and Windsor) or they may be by some lights trivial (as in Moreno). (To be sure, the Moreno plaintiffs who needed food stamps to obtain adequate nutrition may disagree with that last characterization.) But the point here is that common to all the animus cases is a conclusion that the challenged laws deemed certain persons (“hippies,” intellectually disabled persons, or gays and lesbians) as proper subjects for subordination and exclusion simply because of who they were. That purpose may have been explicit (as in Moreno and Windsor), it may have been the impetus behind constituent pressure on government officials (as in Cleburne), or it may have been “the inevitable inference” from objective indicators (as in Romer). Finally, as in Obergefell, it might be “the necessary consequence” of the enactment into law, not of private biases, but of sincerely held religious or moral convictions that have the effect of denying access to something as “central to individual dignity”13 as the right to share in the advantages of marriage.
Thus dignity has the potential to connect animus, not just with the rest of equal protection law, but with constitutional individual rights more generally. In this sense, animus is a subset of constitutional violations that deal with the deprivation of dignity, in the ways revealed by the cases we have considered and the analysis we have constructed. But it is only a subset. A deprivation of such dignity might also arise from a law that denies all persons access to a particularly profound right central to human identity: For example, the Court’s reproductive rights jurisprudence speaks in this tone.14 Or it might arise from laws, like same-sex marriage bans, that deny dignity to some. When this latter type of law arises, a court could simply strike it down as violating the due process rights of the denied group. Alternatively, it could strike it down as violating what Obergefell called “the equal dignity” of that group. Or it could do both—as Obergefell did. These paths may be different, but it is possible to read Obergefell as suggesting that all of them—including the animus path—focus on the promise that all persons enjoy dignity as a matter of constitutional right.