Wednesday, July 29, 2015

Obergefell: Next Steps

by Jeremiah Ho

Editors' note:  This is the second in a series of three posts by Prof.  Ho looking forward to what comes next post-Obergefell.

 Jeremiah Ho's faculty portrait.

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 thatObergefell '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.


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