Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, November 18, 2014

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?


Walsh, Kevin | Permalink