State bans on gay marriage whether passed legislatively, through voter referendums, or by state constitutional amendments have not met with great success recently in the courts. Except for a handful of blue states, gay marriage has been foisted upon the states by judicial decisions.
Dale Carpenter (of the Volokh Conspiracy writing in the Washington Post) has an interesting article that explains in detail the concept of animus and how an interpretation of it may play into an ultimate Supreme Court decision. At some point, the Supreme Court must weigh in on this issue.
The analysis of whether animus exists against a group affected by gay marriage bans may ultimately be the deciding factor in swaying Justice Kennedy one way or the other since he will be the deciding vote. In Carpenter's analysis, there are five factors. The first is textual - what are the actual words of the legislation. He notes that in the Windsor DOMA case, all five factors were violated and the Court had to decide as they did, correctly in his view.
In the first part of the analysis, Carpenter argues that the sweeping language of the law or amendment could indicate a broad purpose of injuring same sex couples. For example, the law struck down in Oklahoma went beyond the mere definition of the status of marriage and included "legal incidents of marriage" which would have precluded civil unions. In effect, he argues they are "shotgun blasts" aimed at denying the recognition of any same sex relationship, not just marriage. Most laws, amendments, or referendums ask or state whether marriage should be defined as a state-recognition of the union of a man and woman. Thus, they are defining the parameters of marriage based on the traditional definition. It behooves this writer to understand how these "definitional" examples show any kind of animus towards same sex relationships or marriage. Carpenter states Oklahoma (and Virginia) have a long history of targeting gays through laws. More on this later.
There will always be the gay-bashing crazy lunatic in the crowd and every state has likely been home to a "hate crime" directed at gays at one time or another. And obviously if a state directly targets homosexuals through legislation (such as those laws struck down in Romer), then a case can begun to be made of an animus against gays specific to that state that may have eventually led to the ban on gay marriage.
Surely, Carpenter cannot be talking about sodomy laws since every state had at one time or another sodomy laws on the books. In fact, the proscribed penalties were much more harsh than those that existed most recently. Regardless, the reference here is what those in the LGBT community call "Gay Jim Crow" laws.
Allegedly described as religious liberty laws at the state level, the gay community argues that businesses and employers are hiding behind religious beliefs to legalize discrimination against gays. Perhaps, the recent attempt by Governor Sam Brownback in Kansas to pass such a law would be an example. The case out of Arizona is another example. But gay rights advocates note that similar laws were in the works in Georgia, South Dakota, Tennessee, Hawaii, Ohio, Oklahoma, and Mississippi.
Let's just assume these nine states represent the "Dirty Nine." And let's give them the argument for the sake of it. What about the other 41 states that may define marriage in the traditional sense yet show no other legislative targeting of homosexuals? Are we to just assume that every state had some animus in their past? Hence, there is a broad assumption that simply because a state defines marriage as between a man and woman, that in and of itself is an example of animus. That would then infer that ever since marriage existed, there was an animus.
This would lead to Carpenter's second factor- the context in which the law was passed. Obviously, prior to the concept of gay marriage and its "adoption" by judicial fiat in Massachusetts, there was no need to have a definition of marriage embedded in a state constitution. But, gay marriage was something new to the United States. This was the context in which these laws and constitutional amendments were passed and ratified.
Which brings up an even more important question than animus in this discussion- federalism. States have always defined the parameters of marriage. For instance, polygamy is outlawed as is bigamy, marriage to immediate family members, marriage to animals. In some states, the mentally incapacitated cannot marry. And there are other restrictions, the most obvious being the age at which one can marry. With DOMA, what got the federal government in trouble was their intrusion into an area traditionally regulated by the states. DOMA could have been avoided by the federal government simply recognizing for federal purposes same sex marriages in states that permitted them. For example, Rhode Island allows gay marriage. The federal government recognizes that marriage whether John and Joe live in Rhode Island or Alabama. But, Alabama does not have to recognize that marriage for state benefit purposes.
In states where there is a well-documented history of anti-homosexual legislation whether cloaked in religious liberty arguments or not, then perhaps a case could be made that anti-gay animus was the motivation for the gay marriage ban. And as Romer clearly stated, an anti-gay animus does not create, but simply undermines a rational basis justification for the law. However, that is clearly not true in every state. In fact, some states that were at the vanguard of gay rights also banned gay marriage.
As Justice Kennedy had stated in previous rulings, animus is present when the law seeks to injure or disparage a person or group of people. He stated in Windsor that it is "the bare desire to harm a politically unpopular group." Once detected, the law must fall. No Justice has ever rejected this tenet that when animus is present, it categorically condemns the state action. Where the controversy enters the argument is when and if animus is present. Carpenter makes an interesting conclusion: "Historical experience...support the inference that anti-gay discrimination will often be animus-based." Not allowing gays to marry is discrimination in this view and therefore must be based on an animus towards gays. It is a circular argument that denies the possibility that animus may not exist at all.
The problem with blanket statements like this is that it tends to lump in the people with the best of heart-felt intentions with the bigots and the crazies. There are many, many people who would never discriminate in any way against a gay person, but who feel that marriage is for a man and woman. Call it the "Phil Robertson phenomena." The question is whether these beliefs rise to the level of discrimination. I argue that beliefs alone are not necessarily grounds for discrimination and not automatically indicative of the presence of animus.
In the next part, I will discuss the other three criteria under the animus theory- legislative history, real-world impact on the affected group, and alternative explanations and means to justify a law.