Gay Marriage, the Supreme Court and Animus- Part 2
How Gay Marriage Bans May Survive
In the previous entry, I outlined the so-called animus analysis when it comes to state gay marriage bans. In that entry, I addressed the textual and contextual dimensions of the theory and that animus is inferred through not only the text of the laws, but also the context under which the law was passed.
Part of that context can be gleaned from the third part of the analysis- the legislative history and debate. Simply, it is most difficult to determine anything in this area with respect to voter referendums. There will be the voters who simply hate homosexuality and everything gay marriage stands for, but there will be decidedly more people who honestly believe that marriage is between a man and woman for reasons other than a dislike of homosexuality. In essence, these referendums tend to create a buffer against charges of animus. The District Court in the Perry litigation regarding Proposition 8 out of California did find evidence of “animus,” although it was not called such by the judge in that case.
Prior to a court imposing gay marriage on Massachusetts, many states reacted by passing laws defining marriage as a means to “not let happen here what happened there.” I believe there is a great misunderstanding among the pro-gay marriage people. Where they see a sinister “us versus them” scenario, other states passed these laws and constitutional amendments to buttress the traditional definition of marriage against court-ordered imposition of gay marriage.
Most people will point to Justice Kennedy’s decision in Windsor and take solace in the fact that he was the author of an opinion that struck down DOMA. But, they are leaving out a key fact here. In that opinion, he stated:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states. [Emphasis added]
Essentially, these state actions were an attempt to warn off courts from imposing upon states a practice that is “the unquestioned authority of the states.” There is likely some examples where one can infer some animus on the part of state legislators towards gay marriage and homosexuality in general. But it is equally disingenuous to assume that every state legislator and every voter who voted for a gay marriage ban or to use the traditional definition of marriage did so with wanton animus towards homosexuals. In the case of DOMA, Kennedy found enough animus present in the congressional record and legislative history that he was led to strike DOMA down.
To this writer, the better solution would have been for Congress to preemptively repeal DOMA and gotten out of the definition of marriage business altogether and recognized “the unquestioned authority of the states” when it came to these matters. They could have, for federal purposes, recognized gay marriages in states that did so even if that married couple moved to a state that did not. If attitudes were truly changing and trending towards an acceptance of gay marriage, then surely those attitudes would become evident in state laws. Maine rejected gay marriage one year and accepted it by referendum three years later. That is the model that should have been used- making your case in the court of public opinion.
The fourth criteria is the harsh real-world effects of the law including actual injuries or damage to one’s dignity. This is the so-called effectual leg of animus theory. Most laws injure someone at some time just as many well-meaning laws have unintended consequences. And obviously, any law that is done so with only malice is suspect and should fall. But, many of the alleged injuries against the LGBT community are paper tigers. For example, a compromise intermediary- the civil union- addressed most of the financial concerns of the gay lobby. They were treated as “married” for tax, estate, health care benefits and a host of other tangible benefits. Yet, gay activists were not content with the compromise. In only one instance is there a real world injury to be found with respect to non-recognition of gay marriage: being compelled to testify against your partner in a court of law.
What you have at the end of the argument is one for the presence of a state-issued piece of paper whose denial allegedly creates a stigma against the group. That is a silly argument. Is a stigma automatically assumed against a minor because a state disallows a 14-year-old from marrying? Is it stigmatization against cocaine users to have laws against cocaine possession and use? Any group or person can claim they have been stigmatized because of any law.
The final part of the animus analysis involves the lack of alternatives to further a legitimate state interest. It is long recognized that the fostering of stable families is a legitimate state interest. In furtherance of this is the historical basis for the existence of a family- to create a stable environment for procreation. Unless we extend the definition of “procreation,” same sex couples cannot procreate unless I missed some major news somewhere. That is not to in any way insinuate that a gay couple cannot provide a stable environment for adopted children. Any state law that exclusively and specifically denied gay couples adoption rights would be suspect and based on either ignorance or bigotry in general. In deciding whether a child should be adopted, the ability and the interests of the adopting adults must be the deciding factor- not the presence of a piece of paper issued by the state.
Hence, laws that specifically guard against discrimination against gays in a wide variety of areas is perhaps the better route to go than court-imposed gay marriage on states. A marriage is recognized through the issuance of a state license. Likewise, a business is recognized through a state-issued license. Should a business be subject to state action that revokes their license because they hire illegal workers? Absolutely! The point is that what the state chooses or chooses not to license is the business of the state, especially in areas where it is long-recognized that states have exclusive control. There is no national marriage license, but court decisions are creating a de facto one.
There may be enough of the criteria to create a reasonable expectation of animus in certain states. The Carpenter article cites Oklahoma and Virginia as two such examples without citing specifics other than Oklahoma’s attempt to ward off “what happened in Massachusetts.” But that alone does not satisfy animus. Other voices in the LGBT community cite state legislative history to build a case of animus.
Michigan, for example, has a law which prohibits same sex solicitation for purposes of “gross indecency.” Under the definition of “gross indecency” is sodomy. In fact, they cite that at least a dozen states have laws against sodomy despite a 2003 Supreme Court decision. More importantly, the gay community should be citing the last time a homosexual was hauled into court and charged with sodomy exclusively. The best the LGBT community can do is cite a 2008 case in North Carolina which the prosecutor later dropped. The reason it was investigated in the first place was because of a domestic violence/forced sex allegation. Most other cases were prosecuted under prostitution or public indecency statutes. For example, to this writer it makes little difference if a person solicits sex from a stranger in the park whether that sex is heterosexual or homosexual. Cases cited out of Virginia involved less a charge of sodomy and more a charge of public sex, or sex with minors that happened to involve homosexuals. Obviously, if the sodomy law applied only to gays or was enforced (if ever) only against gays, there may be a problem. But a broad-based sodomy law that, by definition, takes in sexual activity which homosexuals engage in is not facially discriminatory. And Kennedy’s decision in Lawrence vs. Texas (2003) makes clear that sodomy laws cannot be enforced against only consenting adults in a non-commercial relationship in private. Hence, sodomy law enforcement in the context of sexual child abuse, prostitution, and public sex are clearly acceptable and apply equally to homosexuals and heterosexuals in these contexts.
Because Missouri and South Dakota have laws prohibiting gender identity from being mentioned in anti-bullying policies, this is brought out as proof of anti-gay animus in those states. News flash: bullying is wrong in all contexts and by separating out gays, states are creating a hierarchy of demographic groups. New Hampshire refuses to recognize extramarital gay sex as grounds for adultery since “true intercourse” is not involved. Honestly…exactly how many residents of New Hampshire has this affected? They say that Miami has an ordinance prohibiting bars from serving gays alcohol. And I suppose there are no gay bars in Miami either. Another example is a Mississippi law that prohibits sex educators from condoning a homosexual lifestyle. They also say that eight other states have laws that prohibit showing homosexuality as a positive lifestyle choice. The gay lobby itself contends that homosexuality is NOT a lifestyle choice, so I fail to see the problem with this state policy.
There is no doubt that the Supreme Court will intervene and needs to lay some ground rules. It is probable that some state prohibitions on gay marriage will fall while others may be upheld upon remand depending on those ground rules. Regardless, to make blanket assumptions that gay marriage bans exist solely because of an animus against homosexuals is a win-win for the gay lobby when facts indicate such is not always the case.