Back in June of this year, we all waited with bated breath to hear the Court’s pronouncements in the same-sex marriage cases, Perry v. Hollingsworth (challenging the constitutionality of California’s Proposition 8) and United States v. Windsor (challenging the constitutionality of the Defense of Marriage Act).
I had some predictions about how the cases would turn out, which were about half right and about half wrong. I was right about the fact that one of the cases would turn on standing, while the other would turn on the doctrine of animus. I was wrong, however, about which issue would be determinative in which case.
Based on the district court’s factual findings in Perry (to the effect that Proposition 8 was enacted in an atmosphere of explicit anti-gay bias), and the Ninth Circuit’s decision in the case (which turned on the doctrine of animus), I thought there was good reason to believe that the Supreme Court would look to animus as well. True, there was an issue of appellate standing, but the Court did not order separate argument on that issue (as it did in Windsor) and the California Supreme Court itself had concluded that the Proponents could properly defend Proposition 8. When oral argument rolled around, however, things started to look very different, with Chief Justice Roberts immediately re-directing counsel for the petitioners to address the standing issue.
As we all know now, the Court decided in Perry that the proponents of Proposition 8 did not have standing to defend the law on appeal after the Governor determined not to take up the challenge. I was, quite frankly, shocked by this decision, given that it implies that direct democracy can be usurped by a combination of executive and judicial fiat. Thus, while the Court’s decision in Perry ended up not having a lot to say about marriage equality, it could have profound implications for future initiative and referendum movements—core mechanisms for direct democracy, particularly popular in western states.
But let us turn to Windsor. This was the case that I thought would be resolved on standing grounds–specifically, I believed the Court would conclude that the Bipartisan Legal Advisory Committee (BLAG) lacked standing because Congress had not followed proper procedures in appointing BLAG to defend the law. Furthermore, the Court appointed an amicus to brief the issue and held separate argument on the subject. But, again, oral argument pointed in a different direction. It became clear that several members of the Court were concerned that DOMA expressed naked hostility toward same-sex couples.
And when the decision was handed down, this was precisely the point that the majority opinion focused on. On the one hand, Justice Kennedy’s opinion tells us a lot; on the other hand, it tells us virtually nothing at all. What it does tell us is that the doctrine of unconstitutional animus is alive and well. Plaintiffs planning on challenging state-level same-sex marriage bans should take note: based on the precedent established in Windsor, it may be that proving animus is a more viable path to victory than seeking to prove that sexual orientation is a suspect classification, or that same-sex marriage bans infringe on the fundamental right to marriage.
What Windsor does not tell us is what exactly unconstitutional animus is, and how a plaintiff should prove its presence. Specifically, the three questions about animus that preceded the Windsor decision—how does the Court define animus, what does the Court accept as evidence of animus, and how does the Curt conceptualize the relationship between animus and rational basis review—persist in the aftermath of the decision.
This is in part because Justice Kennedy revived the exceptionally vague rhetoric of Romer v. Evans, which allows the Court to detect the presence of unconstitutional animus where laws impose discriminations “of an unusual character.” Setting DOMA against the backdrop of traditional state regulation of marriage, Justice Kennedy determined that the federal government’s heavy-handed intervention in the field was “unusual” and, based almost solely on this observation, concluded that DOMA violated the Fourteenth Amendment. The Court had a chance to further elaborate on the doctrine of animus, but declined to do so.
Currently, there are thirteen states that allow same-sex couples to marry. In the remaining states, there is a spectrum of relationship recognition, from comprehensive civil union regimes (e.g., Colorado) to multiple statutory and constitutional provisions prohibiting same-sex marriage and/or recognition of out-of-state same-sex marriage (e.g., Arkansas). See http://www.freedomtomarry.org/pages/where-state-laws-stand. Litigation is underway in several jurisdictions and more lawsuits are on the horizon. Does Windsor provide any useful guidance for these cases?
In short, although the Court reached the merits of marriage equality in Windsor, the combined facts that (1) DOMA was a federal as opposed to a state marriage ban (meaning the precedential value of Windsor for state-level marriage equality challenges may be limited) and (2) the opinion does not clarify the doctrine of unconstitutional animus, the question of what is the best litigation strategy in the pending state-marriage challenges remains wide open.
My personal view is that proving the presence of animus is a critical strategy in a world where the Court appears reluctant to acknowledge new suspect classifications or fundamental rights. But the attorneys litigating these cases are left guessing exactly what it takes to make such a showing.