New York Times

In Striking Oklahoma Ban on Single Sex Marriage, Concurrence Raises Potentially Thorny Issue of Animus

WASHINGTON — Same-sex marriage has had a spectacular year in the courts, with an unbroken run of more than 25 victories. The decisions have become routine, almost monotonous.

But there was a note of discord this month in a ruling from a federal appeals court, one that may foreshadow a problem for gay rights advocates at the Supreme Court.

The result in the new decision was the usual one: the United States Court of Appeals for the 10th Circuit, in Denver, struck down Oklahoma’s same-sex marriage ban.

But a 27-page concurrence from Judge Jerome A. Holmes rejected the rationale most likely to appeal to Justice Anthony M. Kennedy, whose vote will be crucial when the question of whether there is a constitutional right to same-sex marriage returns to the court.

Judge Holmes said animus toward gay people had played no role in the ban before his court, a constitutional amendment adopted in 2004 by Oklahoma’s voters. He added that most judges in the recent run of same-sex marriage decisions took the same view, with only four finding that the bans before them were the product of animus.

The point matters because proof of animus has figured prominently in the Supreme Court’s gay rights decisions and may be the easiest route to victory there.

For Justice Kennedy, animus is “a doctrinal silver bullet,” Susannah W. Pollvogt, who is about to join the law faculty at Washburn University, wrotelast year in an online supplement to The Columbia Law Review.

Judge Holmes agreed that evidence of animus is fatal. “What happens when the clues are all gathered and animus is detected?” he asked. “The answer is simple: The law falls.”

But he rejected the simple answer and instead praised what he called the wisdom and forbearance of, by his count, 14 recent decisions that struck down same-sex marriage bans while saying animus had played no role in their enactment.

In Oklahoma, Judge Holmes wrote, there was no evidence of hostility toward gays. The constitutional amendment approved by the state’s voters, he said, merely reinforced what had always been so: Same-sex couples were not allowed to marry before its adoption or after it.

But it would not be hard to draw the opposite conclusion. The amendment came in the wake of a 2003 decision allowing same-sex marriage in Massachusetts, and the amendment’s sponsors said it was needed to ensure that nothing similar happened in Oklahoma.

“It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage,” James Williamson, a Republican state senator and an author of the amendment, said at the time.

Susan Sommer, a lawyer with Lambda Legal, the gay rights group, said Judge Holmes’s reasoning was on one level understandable. “The judge wanted to be clear,” she said, “that he was not suggesting that a majority of the voters of the state are wild-eyed bigots.”

But Ms. Sommer added that Judge Holmes’s understanding of animus, which is a slippery legal term of art, was too narrow.

“We don’t need to find extreme malicious intent,” she said. “What can be involved are stereotypes, beliefs, negative attitudes and fear of what remains unknown.”

Just what animus means has divided the Supreme Court in telling ways, with the more conservative justices setting a high bar.

Dissenting last year in United States v. Windsor, which struck down part of the federal Defense of Marriage Act, Chief Justice John G. Roberts Jr. suggested that animus required a “sinister motive” and “bigotry,” while Justice Antonin Scalia spoke of “unhinged members of a wild-eyed lynch mob” with “hateful hearts.”

Justice Kennedy’s version of animus has been easier to satisfy.

In 1996, in his majority opinionstriking down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians, Justice Kennedy said some laws “raise the inevitable inference that the disadvantage imposed is born of animosity.”

Last year, in his majority opinion in the Windsor decision, he said he detected “an improper animus” based on what the Defense of Marriage Act meant to do and did in denying benefits to married same-sex couples.

“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.”

At the argument of the Windsor case last year, Justice Elena Kaganmade a comment that seemed partly directed at Justice Kennedy. “When Congress targets a group that is not everybody’s favorite group in the world,” she said, courts must ask whether “Congress’s judgment was infected by dislike, by fear, by animus and so forth.”

Judge Holmes’s conclusion that animus did not figure in state bans on same-sex marriage would, if accepted by the Supreme Court, block one path to victory for gay rights groups. There are other paths, of course, as the winning streak in the lower courts makes clear.

Still, Professor Pollvogt said, gay rights groups should not give up.

“It is obvious from the Windsor decision that the court is inclined to rely on the animus doctrine,” she said. “Advocates should focus on clarifying the doctrine for the court, and making it politically palatable.”

The battle, she said, is over what the word means.

“Advocates should make clear that to say a law is based in unconstitutional animus is not to say that the proponents of the law were bigoted or hateful,” she said. “If animus is understood this way, it will rarely be relied upon and will become a footnote to history.”