'The question of animus will be prominent – perhaps pivotal – in this final phase of marriage litigation. So far, the arguments made by plaintiffs have been remarkably sterile, emphasizing formal equal protection and due process arguments and failing to say much about how the mini-DOMAs actually came into being. But such a picture is incomplete. To fully consider the constitutionality of the remaining anti-marriage laws, we must lift up these proverbial rocks to see what was festering underneath them.
An inquiry about animus does not require that we “indict” citizens who voted for a law, or that we probe their psyches or individual motives. It simply takes seriously the principle that every law is proposed and approved for some
purpose (sometimes more than one), and it is a judicial task to identify and assess the purpose(s). When evidence of gratuitous or irrational intent to harm a group outweighs a law’s purported legitimate justifications, the law betrays an improper purpose and violates equal protection. As the late Chief Justice William Rehnquist observed in
Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was “motivated by a desire to discriminate.”
The Court has demonstrated time again – in
Underwood, as well as cases like
Mount Healthy City School District Board of Education v. Doyle,
Village of Arlington Heights v. Metropolitan Housing Development Corp.,
Personnel Administrator of Massachusetts v. Feeney, and
Romer v. Evans – that in a purpose inquiry, history, circumstances, and objective evidence (both direct and inferential) about the enactors’ intent all matter. A majority of states enacted constitutional mini-DOMAs in a brief fourteen-year window, and so we can consider them as a collective phenomenon. Understanding their purpose requires that we examine the reasons legislators and proponents said they were necessary, the circumstances under which they were enacted, and the lack of coherence between what was said
then and how states defend them
now.'
Symposium Let s be clear the marriage bans are about animus SCOTUSblog
