The US Supreme Court appears ready to invalidate the remaining state prohibitions on same-sex marriage later this term. It is often dangerous to read too much into the court's tea leaves, but even justices who would defer to the states on such matters seem to acknowledge the writing on the wall [PDF]. Of course surprises can happen, but the common wisdom is that the court this term will sweep away the remaining state same-sex marriage bans, as it should.
Assuming the court rules as expected, how should it write the opinion? In striking down other laws burdening same-sex couples and/or gay and lesbian persons more generally, the court has placed substantial weight on its perceptions that the laws at issue were motivated by animus. By relying on such findings, the court in cases like Romer v. Evans and US v. Windsor found an equal protection violation without having to hold that gay and lesbian persons were members of a suspect class deserving heightened protection.
One can understand why the court declined to hold sexual orientation a suspect classification. Such a doctrinal move in Romer would have called into question the constitutionality of numerous laws, including the military's Don't Ask Don't Tell policy, and the court generally tries to avoid stepping on the toes of special governmental institutions, like the armed forces. Furthermore, the application of heightened scrutiny, especially by the time of Windsor, would all but have decided the marriage question. States have found it hard enough to articulate a legitimate governmental interest served by same-sex marriage bans; it is virtually impossible to articulate an important one. But though Justice Scalia complained in Windsor that the court's decision would inevitably spell the demise of state same-sex marriage prohibitions, the court did not want to decide the marriage issue yet, and (so?) it resolved the cases on other grounds.
Now however, it appears that the court will decide the marriage question, so the consequences of heightened scrutiny will likely seem less problematic to the justices. The court, therefore, should use the marriage case to announce that sexual orientation is a suspect classification triggering intermediate scrutiny. Applying such an analysis, the court should hold that same-sex marriage prohibitions deny equal protection of the laws, because they are not substantially related to the achievement of an important governmental interest. (The court incidentally could also hold that the marriage bans violate the Due Process Clause of the Fourteenth Amendment by impinging on the fundamental right to marry. I think equal protection is the better and more likely doctrinal vehicle, though the court could borrow due process principles to help support an equal protection holding, or vice versa.)
I suggest heightened scrutiny with some trepidation. The tiers of scrutiny are an imperfect doctrinal mechanism for fleshing out equal protection (or anything else), and the court sometimes bypasses the tiers [PDF] in important cases. The court for several decades now has also usually refused to identify new suspect classes [PDF].
However for all the tiers' flaws, heightened scrutiny remains the best way to resolve this issue. For one, gay and lesbian persons deserve the legal protections afforded by intermediate scrutiny. Winning the battle over marriage equality will be a big step for the gay and lesbian community, but it will not be the final battle. The court could help protect that community from further discrimination by announcing to the nation that classifications based on sexual orientation are inherently suspect.
Precedent forms less of an obstacle to this approach than one might think. Scholars disagree about whether Romer held that laws targeting gays and lesbians receive only rational basis review or alternatively, found that the Colorado amendment failed rational basis and therefore would have failed any level of scrutiny. Either way the common wisdom is that the court did not apply deferential rationality review but rather "rational basis with bite." In invaliding section 3 of the Defense of Marriage Act, Windsor abstained from articulating a tier of scrutiny but also seemed to apply searching review. Heightened scrutiny is not what the court says in these cases, but it may be what it does.
This reading of the case law mirrors a progression in other areas in which the court has seemed to apply heightened scrutiny before officially announcing it. In the sex discrimination context, Reed v. Reed purported to apply rationality review in striking down the challenged law. Commentators however have argued that Reed implied that sex-based laws are inherently suspect, and the court in subsequent cases explicitly applied heightened scrutiny to laws classifying on the basis of sex.
More to the point, sexual orientation satisfies the court's traditional inquiry for recognizing a suspect class. First, gay and lesbian people historically have been subjected to terrible discrimination in this country. Second, sexual orientation bears no relationship to a person's ability to contribute meaningfully to society. Third, psychological research [PDF] strongly indicates that sexual orientation is immutable or at the very least highly resistant to change. Fourth, while gay and lesbian persons have certainly made substantial gains in recent years, they still constitute a minority group enjoying only limited political power. This fourth point is admittedly contestable, but the other three factors weigh strongly in favor of heightened scrutiny, and the court typically considers these factors collectively rather than as elements that must be independently satisfied.
The court should also contemplate the dangers of rooting its decision in findings of animus. It is certainly true that some opponents of same-sex marriage harbor animus for same-sex couples. But other people oppose same-sex marriage not out of malevolence but due to a variety of sentiments, such as tradition, religion and fear of change. These rationales, in my mind, do not justify the marriage bans, but it is a mistake to label them all "animus." These stated justifications may sometimes be subterfuge for spite, but sometimes they are not. I know people who wish their gay and lesbian friends well but still feel uncomfortable supporting marriage equality. I think their conclusion is wrong, but that does not mean it is hateful.
To be sure, the word "animus" is susceptible to many definitions and may merely reflect unconscious bias. But even though Justice Kennedy in Romer and Windsor likely intended the word to diagnose not "unhinged members of a wild-eyed lynch mob" but merely the outdated prejudices of a less enlightened era, the word still often connotes a sinister intention [PDF] that causes needless offense. Phrased somewhat differently, even if the opinions properly read did not accuse the laws' supporters of bigotry, plenty of readers understood them to do exactly that.
A judicial finding of "animus" indeed is an unstable foundation upon which to rest such an important constitutional development. As just noted, the meaning of the term is highly malleable. Justices also disagree sharply about what kinds of evidence indicate animus. Further complicating matters, if a legislature had multiple motives for passing a law—some malicious, others not—should the presence of some animus doom the statute?
A marriage decision rooted in findings of animus may also create unnecessary legal complications. In Romer and Windsor, the court plausibly—though controversially—identified animus in the legislative history of the challenged provisions. The marriage cases by contrast invite the court to throw out numerous same-sex marriage bans across the nation, including those not currently before the court. Courts in theory could examine the specific facts behind each state's marriage laws in a series of challenges over the next few years. This approach, however, would be inefficient, and it would leave in place marriage bans not found to rest on animus or not yet subjected to this inquiry. Such an outcome would quite obviously be unsatisfactory to same-sex couples awaiting marriage rights, as it would require further delay and extended litigation after a victory in the US Supreme Court. Under this approach, federal courts also would likely make recurrent pronouncements that various marriage bans do reflect animus. Such repeated pokes in the eyes of marriage opponents would only make it more difficult for the country to move on.
The more likely approach would be for the court to find that marriage bans reflect animus per se. This approach would avoid the legal chaos of numerous state-specific inquiries, but it would invalidate some state laws, including constitutional amendments, for improper motive without actually bothering to examine the specifics of the laws at issue. It also would needlessly cast aspersions on millions of Americans who may vaguely favor the status quo without ill will in their hearts. Many of these people will likely eventually join the fast-growing majority of Americans who favor same-sex marriage, but in the meantime tarring them with "the brush of bigotry" will not likely help change their views.
Even if the court considered the word "animus" convenient shorthand for the very real societal harm the bans inflict, the majority should recognize that such language is more likely to fan partisan flames than build consensus. The court presumably has avoided the marriage issue so far in part because it feared that its decision might prompt a backlash. Given the fast-growing support for marriage equality today, a major backlash seems less likely today than it did even a few years ago (though some resistance is, of course, inevitable). Nevertheless, the court should be sensitive to these concerns and should not needlessly alienate those Americans who may be on their way but have not yet come fully around on this issue. If the court wants to play a didactic function in our society, it would be wiser to celebrate a broad constitutional commitment to equality than to denigrate those Americans who, correctly or not, see themselves as guardians of ancient traditions.
These points should not be overstated. Few Americans read US Supreme Court opinions closely, and any court decision on this issue, however framed, will instantaneously have its healthy share of fans and foes. But the media and other sources do share judicial reasoning with the public, and the court's rhetoric can affect the country's reaction. Marriage equality is legally and symbolically important for same-sex couples and their children, and it is also a vital step towards a more just, fair and compassionate nation. In taking that necessary step, the court should choose its words carefully.
Eric Berger is Associate Professor at University of Nebraska College of Law, where he teaches Constitutional Law, Constitutional History, Federal Courts and Statutory Interpretation. Professor Berger's scholarship focuses on constitutional law. His recent work has explored judicial decision making in constitutional cases, with special attention to deference and other under-theorized factors driving constitutional outcomes.
Suggested citation: Eric Berger, Same-Sex Marriage, Heightened Scrutiny and the Problem of "Animus", JURIST - Academic Commentary, Mar. 21, 2015, http://jurist.org/academic/2015/03/eric-berger-samesex-marriages.php.
This article was prepared for publication by Christina Alam, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org.