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? Read more