At the end of April, the U.S. Supreme Court is scheduled to hear arguments about whether states may retain the definition of marriage as the union of a man and a woman or whether they must redefine marriage to include same-sex couples. All of the legal briefs (an oxymoron, given the number of trees that have to die to allow a lawsuit to move forward) in favor of same-sex marriage have been filed. Around 70 different parties have piled on in favor of same-sex marriage.
From the arguments that have already been presented to the court, two themes are prominent. One is that the state marriage laws should be struck down because they are motivated by animus. The other is that any legal classification that could impact a person based on the new legal category of sexual orientation has to be treated in the same way the courts would treat classifications in the law based on race.
The animus argument is a tricky one because it requires the challengers to prove that the millions of voters who voted in favor of marriage laws being challenged were acting out of some motive of ill will or spite. Even assuming such an accusation could possibly be true, it is hard to imagine what kind of evidence could be brought to establish such a claim.
Of course, it is obvious that voters will have had many reasons for supporting marriage quite apart from any hostility towards any group or individual.
To get around this problem the legal argumentation has focused on a novel understanding of hostility: It is not, the argument goes, that voters necessarily were acting from bad motives but that the laws have the effect of creating disadvantage for a group of people here by not allowing them to get the political result they would have wanted and the mere fact that some were disappointed by the results in an election is enough to show that they are the victims of hostility.
The advantage of this departure from the plain meaning of the concept of animus for those challenging the marriage laws is that they don’t have to show hostility for the court to determine there was hostility. In fact the argument allows for non-hostile hostility. Showing this kind of animus only means convincing a court that a law creates a disadvantage for you (including a sense that your dignity is being impugned).
The second argument urges the court to decide that any law that arguably creates a disadvantage for people based on “sexual orientation” has to be treated the same as a law that denies a group of people a right or benefit because of their race. This is a far-reaching result because it would have the effect of branding those who believe that marriage should continue to be understood as the union of a husband and wife (and the correlated belief that children are entitled to be reared by a married mother and father) as morally equivalent to racists.
In one swoop, not only is the question of whether same-sex couples can access marriage licenses resolved, but the Court can also lend its support to the idea that any disagreement with new norms of sexual morality drastically at odds with those held by nearly every society throughout time, and still by the vast majority of the world’s religions, is out of bounds.
Now those who have read the actual Constitution might be confused at this point. Where does it talk about animus or sexual orientation?
The genesis of these legal arguments is not Constitutional text of original meaning but rather Supreme Court decisions from the 1970s.
The animus idea comes from a Supreme Court case in which the Court struck down a requirement that food stamp recipient households be made up of families. The court held that Congress was just acting out of spite for alternative households, like hippie communes, and thus the requirement was invalid under the Constitution.
In the 1970s, the Court was also busy creating a new tiered system for determining when laws violated the Equal Protection Clause of the 14th Amendment. The court created at least 3 general “levels of scrutiny.” The Court determined that it could place every group claiming to be disadvantaged by a law into one of the levels based on tests it created. The basic idea being that some groups in society needed the courts to put a thumb on the scales of justice to ensure they would get fair treatment they would not otherwise get in the normal political process.
At the top would be racial classifications; in the middle, classifications based on gender; and then everyone else. But the court left open the possibility that other groups (like the poor, etc.) could be added to one of the groups and thus get more favorable treatment in court decisions. In the current lawsuit, the U.S. government and many others are arguing that gay and lesbian people should be added to one of the higher levels to make up for perceived lack of political power. Parenthetically, it is somewhat odd that that would apply to a group for whom major law firms, businesses, and government leaders are falling over themselves to embrace same-sex marriage at the Supreme Court.
What does all of this matter to those who don’t really care about how the courts will come out on the question of marriage? The rules being advocated in the same-sex marriage litigation will, as we have seen from those created in the 70s, be applied by federal courts to a wide variety of other circumstances. Whatever one thinks about the wisdom of those rules, they will have the effect of granting an enormous amount of discretion to the federal courts to determine what the laws or should not be.
Beyond what this means for marriage or for children, that development means a lot for the principle of self-government and even for the ability of ordinary people (non-lawyers, for instance) to have any real impact on the actual legal rules and standards that will be applied on the entire range of constitutional issues on which federal courts will rule for decades to come. The court rules being advocated in the marriage cases are broad enough to preserve the Court’s discretion to make all kinds of decisions on all kinds of issues not enumerated in the Constitution. That’s why the outcome of a case like this matters to everyone.
William C. Duncan is director of Sutherland’s Center for Family and Society.