The Animus – Dignity Connection: Obergefell
By Jeremiah Ho
Editors’ note: This post is part one of three posts. Today’s post explores the history of Justice Kennedy’s use of the language of animus and dignity, setting the stage for tomorrow’s post on next steps.
Last month the US Supreme Court ruled on marriage equality in Obergefell v. Hodges and ushered in the decision that the fundamental right to marriage applies not only to opposite-sex couples but equally to same-sex couples as well. With that, state exclusions of this unenumerated and constitutionally-basic right from same-sex couples were viewed as intolerable under the US Constitution. This perspective was not so readily evident in the national imagination even in the recent past, let alone more than four decades ago when the court itself had summarily dismissed its first same-sex marriage case, Baker v. Nelson, “for want of a substantial federal question.” Nearly 43 years later, Obergefell has now revealed that there definitely is a federal question within the context of same-sex marriage. The court’s answer to that federal question last month showed just how substantial that question was.
So how did we get here? Writing for the Obergefell majority, Justice Kennedy reasoned through the issue within a specific context of discrimination that he—as the author of now four canonical gay rights decisions in recent Supreme Court memory—began building in Romer v. Evans and has developed throughout the rest of the quartet: Lawrence v. Texas, US v. Windsor and Obergefell. Throughout these opinions, Kennedy has relied on concepts of animus and dignity to create a narrative—both emotional and doctrinal—of the experience of marginalization endured by sexual minorities under the law. Gradually, the connection between animus and dignity in these cases has crystallized into an anti-stereotyping principle, proven crucial for mediating from one gay rights case to another and for overturning discrimination in each instance at the court.
Although Obergefell did not rule on the issue of whether sexual minorities deserved higher tiered scrutiny protection than rational basis, Kennedy’s reliance on animus and dignity in Obergefell sets up importantly the next step in gay rights activism: antidiscrimination.
By tracking Kennedy’s quartet of gay rights cases, we see that the concepts of animus and dignity were first introduced separately in earlier cases and then married together in the later ones. Kennedy introduced the concept of animus within the context of sexual orientation discrimination in Romer in 1996, importing its use from other equal protection cases such as Department of Agriculture v. Moreno. Rather than exploring whether sexual orientation warranted suspect or quasi-suspect classification to overrule Colorado’s Amendment 2, a voter-approved referendum that banned any specified legal protections for gays and lesbians from discrimination, Kennedy drew upon a significant finding of animus to rule that Amendment 2 was unconstitutional under rational basis. In a political society, we cannot reasonably sustain laws created with hatred or animus against a particular group and Amendment 2 “seem[ed] inexplicable by anything but animus toward the class it affects.”
Then with Lawrence in 2003, Kennedy introduced the idea that discrimination against sexual orientation could amount to a deprivation of dignity when he wrote to overturn Bowers v. Hardwick, a Supreme Court decision that had permitted states to criminalize consensual same-sex intimacy. Kennedy articulated the idea that state sodomy laws that criminalized consensual same-sex intimacy interfered with the autonomy and privacy of consensual adults engaging in same-sex sexual behavior and singled them out to be criminals if caught. This criminalizing effect left such adults without dignity for engaging in intimate behavior possibly indicative of their sexual orientation. By likening Lawrence to other privacy cases such as Planned Parenthood v. Casey, Kennedy extrapolated the dignitary harms concerns from the context of privacy and contraceptives in Caseyand embedded them here in the realm of same-sex intimacy and demonstrated that for same-sex couples, the criminalization of intimacy that could be indicative of their sexual orientation deprived them of the privacy, freedoms and dignity that were afforded couples engaging in sex acts indicative of heterosexuality. From Lawrence, the freedom to engage in consensual sex was deemed part of “the right to define one’s own concept of existence, of meaning, and of the universe, and of the mystery of human life.” Criminalization of such acts amounted to indignity.
While Romer was solely an animus case and Lawrence championed dignity rights, Windsor was Kennedy’s first gay rights opinion to explicitly combine the two concepts. While discussing DOMA’s [PDF] discriminatory effect against sexual minorities in Windsor, Kennedy found that DOMA was a law steeped in animus that effectively marginalized married same-sex couples on the federal level. His examination of DOMA’s legislative intent captured a finding that DOMA was borne of legislative animus—a moral disapproval reinforced by antigay essentialist notions about same-sex relationships—and animus that had an intolerable purpose of imposing inequality. Fueled by animus, DOMA then existed to discriminate against married same-sex couples, not only by excluding federal benefits available to married opposite-sex couples, but by also symbolically relegating them to second-class labeling. Kennedy distinctively characterized such relegation as stigmatizing and demeaning to same-sex relationships and to the families created by those relationships. In Windsor, he doctrinally and centrally wove both animus and dignity into his calculation of DOMA’s unconstitutionality under equal protection, fully galvanizing the connection as the reason to overturn such discrimination in the law.
Post-Windsor, lower courts imported and elaborated upon Kennedy’s animus-dignity connection into their own resolutions over state marriage bans and mini-DOMAs. Such courts utilized the broadness of Kennedy’s language in Windsor to explore the animus-dignity connection in marriage and sexual orientation discrimination even further. The post-Windsor moment was an interesting one for observing how subsequent courts have used some of the open-endedness of the animus-dignity connection in Windsor to reinterpret doctrinally how denying same-sex couples the right to marry constituted discrimination. Essentially, these courts in post-Windsor marriage cases picked up where Justice Kennedy left off.
Editors’ note: This post originally appeared in Jurist.com