JURIST Guest Columnist Jeremiah A. Ho of the University of Massachusetts School of Law, discusses the substantial federal question underlining in Obergefell v. Hodges…

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 Casey and 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.

When marriage litigation boomeranged back to the Supreme Court in Obergefell this year, Kennedy extended the animus-dignity connection in an opinion that encompassed the same-sex marriage issue under both fundamental rights and equal protection. Kennedy was able to humanize discrimination against same-sex couples by framing the facts between historical animus toward sexual minorities that excluded them from marriage and the genuine indignities such animus has caused. Kennedy began his opinion by reiterating the intellectualized stance taken by same-sex marriage opponents that “it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.” Implicit in Kennedy’s depiction is the rhetorical question, why would such inclusion “demean” the institution of marriage but for the moral disapproval or animus of same-sex couples? He then transitioned to the depictions of that exclusion, notably mentioning the plights of the petitioners in undignified positions because of marriage bans in their home states. Particularly heart-breaking was the account of Petitioner Obergefell who had to marry his ailing spouse inside a medical transport plane on a Baltimore tarmac far away from their home state of Ohio only to have Ohio later strip them of the benefits of marital status. The animus-dignity connection also appeared in Kennedy historicism on the modern gay rights movement, when he discussed how “same-sex intimacy long had been condemned as immoral by the state itself in most Western nations” and that was why “many persons did not deem homosexuals to have dignity in their own distinct identity.” In a similar passage, he noted a time when “the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions.” These narrative uses of animus and dignity exemplify the connection as an anti-stereotyping principle that channels toward an emotional rather than an intellectualized core. It is also the first time in these cases that animus and dignity have been used on this visceral level.

In articulating why the fundamental right to marriage applied also to same-sex couples, Kennedy relied primarily on dignity rights reminiscent of how he reached his result in Lawrence and Windsor. Withholding the exercise of marriage rights from same-sex couples restricted personal choice and self-determinism, perpetuated a second-class citizenship, demeaned the families created by same-sex unions and precluded benefits of marriage accorded opposite-sex couples. And once the fundamental rights issue for the ability of same-sex couples to exercise the right to marriage was set, Kennedy did not need to venture into a protected class analysis in his equal protection rationale. Of course, pro-LGBTQ rights advocates had hoped that Obergefell ‘s equal protection analysis would have been more robust in regards to sexual orientation as a protected class. But even here, the result was favorable for same-sex couples and Kennedy accomplished this in part by relying again on connecting animus and dignity when he wrote that “[e]specially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.”

Where do we go from here? The animus-dignity propagated in these gay rights cases has established a correlative effect between the two concepts that elevates the connection into an anti-stereotyping principle or channeling device. The connection shows us what is wrong with the way the law has been used to marginalize a sub-group in society based on disapproval for a characteristic that members of this sub-group possess. The connection then highlights how that marginalization pervasively hinders members of the sub-group’s ability to lead their lives according to our collective beliefs of self-determinism, freedom and individuality. That correlative effect offers potential furthering advances in sexual orientation antidiscrimination, the next realm for gay rights advocacy.

Post-Obergefell, antidiscrimination advocates should seek more instances for exposing how some long-standing societal prejudices toward sexual minorities are based on animus and how that animus leads to marginalization that deprives human dignity. Through those instances, the experiences of sexual minorities will be revisited within the context of important big-word concepts in American democracy—ideas such as autonomy, liberty, equality and justice—that we all fundamentally value, but perhaps in different ways. In particular, sexual orientation could be regarded highly as a characteristic, protectable like race or gender, viewed as being so basic to peoples’ identities that the law ought not to curtail or force them to change. In order to get there, advocates will need to rely on concepts of animus to demonstrate how notions that being gay was either a choice that is morally blameworthy or a biological pathology are prejudicial and have been the impetus for policies and laws that marginalize sexual minorities. Advocates will also need to employ dignity concepts in showing how marginalization harms personal and human dignities by interfering with freedom of sexual minorities to live based on their constitutive sexual identities. Aside from being historically important judgments, the animus-dignity connection is the legacy that Kennedy’s Romer to Obergefell gay rights cases leaves us for the next step.

Jeremiah A. Ho is an Assistant Professor of Law at the University of Massachusetts School of Law. His scholarly work focuses on the developments in sexual orientation and the law. His latest article to be published this fall from the Kentucky Law Journal (University of Kentucky School of Law) will focus on the upcoming Supreme Court challenge to marriage equality in Obergefell v. Hodges. He thanks Margaret Drew for her generous comments on drafts of this commentary.

Suggested citation: Jeremiah A. Ho, Animus and Dignity: Justice Kennedy’s Anti-Stereotyping Principle in Obergefell v. Hodges , JURIST – Forum, Jul. 22, 2015, http://jurist.org/forum/2015/07/Jeremiah-Ho-Obergefell-Hodges.php