Today's New York Times carries an op-ed by Bill Keller titled "A Brief for Justice Kennedy" in which he makes a sweet, but pretty much legally beside the point, argument that the Supreme Court should strike down exclusionary marriage laws because they harm gay couples. With all due regard to Keller for endorsing this argument, and realizing that he is writing for a non-legal audience, I think it nonetheless makes sense to remind people that the real briefs that will need to be filed with that or other courts have to come up with more than that. Lawyers have to persuade a court that democratically-adopted laws not only cause harm, but are so invidious and so lacking in any legitimate purpose that they must be struck down.
Without belaboring legal technicalities, the key to achieving that goal will be to persuade judges that such a law is a product and instrument of unjustified bias, or, to use the term that has evolved in case law, of animus. And the elaboration of a more sophisticated theory of animus is one of major contributions of the Ninth Circuit's February opinion in the Prop 8 case.
Here's part of what I had to say about that in an essay titled "Animus Thick and Thin" published in Stanford Law Review online:
One fundamental point of the Perry decision is that singling out a socially disfavored group for the withdrawal of an important right reeks of animus. This should not be a controversial claim. Considered together with the denigration of gay people that saturated the pro-Proposition 8 campaign, the consequence of the “taking away” sequence of events in California [the state supreme court ruled that same-sex couples have a fundamental right to marry, then voters enacted Prop 8] is to trigger heightened rational basis, the standard of review used by the Supreme Court in Romer v. Evans. In my view, sexual orientation ought to be considered fully suspect when it is used as a basis for differential treatment under law, but neither the Supreme Court nor any U.S. court of appeals has so held.
By contrast, taking a closer look at laws infused with animus is something that the Supreme Court has done since 1973, when it struck down a law enacted to disqualify otherwise eligible “hippies” from obtaining food stamps. However, the Supreme Court has done so rarely and, more importantly, has never said that it was using this device. Indeed, how to categorize and assess animus has become a recurring and unresolved question in equal protection law.
Justice Scalia raised the stakes on animus in his dissent in Romer, in which he attacked the majority opinion for adopting “the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.” Scalia derided the Court’s suggestion that voters had “been guilty of ‘animus’ or ‘animosity’ toward homosexuality,” and characterized its “stern disapproval of ‘animosity’ toward homosexuality” as a misreading of a “reasonable effort to preserve traditional American moral values.”
In Board of Trustees v. Garrett, a case that divided the Court five to four, the dissenting opinion argued that adverse treatment resting upon “negative attitudes, fear, or irrational prejudice” necessarily violated the Equal Protection Clause. Chief Justice Rehnquist, writing for the majority, replied that “[a]lthough such biases may often accompany irrational . . . discrimination, their presence alone does not a constitutional violation make.” Justices Kennedy and O’Connor both joined the Rehnquist opinion, but also wrote separately to say that “[p]rejudice . . . rises not from malice or hostile animus alone,” but also from thoughtlessness. Clearly the concept of animus marked highly contested ground.
Justice O’Connor responded in her concurring opinion in Lawrence v. Texas, where she spelled out the analysis for why evidence of animus (presumably when not merely “prejudice”) should trigger tougher review under the Equal Protection Clause, even for nonsuspect classifications. Perry v. Brown, however, is the first opinion with precedential weight to adopt Justice O’Connor's approach.
The Ninth Circuit accepted the proposition that there might be a rational reason—i.e., apart from animus—for a state to limit the benefits linked to marriage to only those couples who might “procreate accidentally.” Since same-sex couples don’t have those kinds of accidents, including them in the group eligible to marry would not be necessary to advance that interest. Thus, the court reasoned, a state could rationally choose to exclude gay couples from marriage.
The court found, however, the proponents of Proposition 8 advanced no legitimate reason for taking away the right to marry and its presumed protective benefits for children from the broader group covered under a regime of marriage equality.
The difficulty with this part of the court’s reasoning is that the accidental procreation argument itself is so strained. Using marriage as a state-sanctioned mechanism for enhancing the likelihood that adults who have children will legally bind themselves to each other and thereby—so the theory goes—provide a stable family dynamic for raising children is advanced as much by allowing gay couples to marry as allowing straight couples to marry. So for the court to accept that accidental procreation is a plausible state interest, it has to accept that the state could have a legitimate interest in protecting only the children of unplanned and unwanted pregnancies.
The Perry court did not have to reach the question of whether the accidental procreation rationale could ever make sense, so it didn’t. Beneath this hesitancy surely lay an understanding that profound shifts in social meaning occur in slow motion; that very factor justifies minimalist adjudication.