Is Gill Ripe for Reversal?

Last week, in two rulings, a federal judge in Massachusetts held that the Defense of Marriage Act was unconstitutional. The cases were Gill v. OPM and Hill v. HHS. Of especial interest is Gill, in which DOMA was held to violate the equal protection clause of the Fifth Amendment.

Blogger Jack Balkin argues that we should stash the champagne for the time being. (Helpful follow-up from Balkin on the equal protection angle here; both the initial post and the follow-up are worth reading.) He fears that Gill is in serious jeopardy of being overturned by the First Circuit or the Supreme Court. Such an outcome would make the current euphoria a mere prelude to more, and greater, disappointment.

Balkin's analysis of the court's rather ironic Tenth Amendment argument is intriguing, but what really interests me is his analysis of the court's equal protection argument. Here, Balkin echoes qualms I have always held about equal protection arguments concerning gay rights: the applicable standard, rational review, is rather easy to meet. To pass constitutional muster, a law making distinctions based on sexual orientation need only be rationally related to a legitimate governmental purpose. Moreover, such laws are presumptively constitutional, so the burden is on the challenging party to show unconstitutionality. By contrast, a law making distinctions on the basis of race - the archetypal "suspect class" - must be narrowly tailored to a compelling government interest. Such a law is also presumptively unconstitutional, meaning that the government has the burden to show constitutionality.

Balkin thinks that Judge Joseph Tauro's equal protection logic is "way ahead of the national consensus[.]" Looking at the current composition of the federal appeals courts, and the Supreme Court in particular, Balkin's caution is warranted. It is far from a foregone conclusion that no rational basis exists for DOMA. That basis need not be praiseworthy, or defensible, or justified - merely rational. If an appeals court concludes that Tauro overreached, it could upset the apple cart entirely. Current jubilation over the broad scope of Judge Tauro's holding may yet give way to disappointment.

Balkin is particularly disquieted by how Judge Tauro's "animus" analysis. Laws motivated by naked animus to a particular group - and goodness knows, there's a lot of animus against gays -fail the rational review test. Here, Balkin finds it a stretch to argue that politicians who supported DOMA - like, say, Bill Clinton - were homophobes motivated by pure animus. And yet, that is how Judge Tauro concluded that animus was present.

I think Balkin is asking the wrong question here. It isn't whether the politicians that enacted DOMA can be classified as homophobes (a word I'm not keen on, by the way). It's whether they were motivated to pass DOMA by animus toward gays. That's a different question. Non-racist people can say or do racist things, often without intending to do so. Likewise, non-homophobic politicians can be motivated by animus toward gays when they enact a law that bars federal recognition of gay marriage - especially when one of the stated reasons for the law is keeping marriage to its traditional role as the preserve of heterosexuals only.

Balkin also thinks that the animus logic is weak because the politicians who voted for DOMA were motivated by fear not of gays, but of their constituents. Undoubtedly so - but this argues too much. First, the test is for animus, not fear, and they are not necessarily the same thing; animus can be motivated by imperious disdain for an especially powerless minority group from which the majority has nothing to fear. (In the words of Robert Frost, such a majority "[laughs] the loud laugh the big laugh at the little.")

Animus is a broader concept, encompassing fear but extending beyond it as well. Animus can be borne from, say, righteous certainty or cultural antipathy, and it can be reinforced by laziness and ignorance. Legislators need not fear a group to act with animus toward that group.

Second, and more importantly, the same or something similar could be said of any politician's vote. If it were always a defense to an animus charge that a legislator merely channeled his constituents' animus in order to get reelected, then when exactly does a legislator legislate with animus? And even if this point were valid - so what? In a representative democracy, isn't it assumed that politicians represent the will of their constituents? Do those constituents have some sort of right to animus that is denied to their representatives - put differently, are laws enacted directly via plebiscites (like Proposition 8) immune from an animus inquiry? I should think not. And if voters cannot directly legislate unconstitutional animus via plebiscites (not in theory, anyway - pace Prop 8), how is it that they could do so indirectly through their elected representatives?

So you don't have to fear a particular group to harbor animus toward them. And for the legislators, "just doing what my voters told me" isn't a defense. These two observations make me more sanguine, I guess, than Balkin about the animus argument in the ruling.

More broadly, however, I share Balkin's qualms and worry that today's equal protection jurisprudence is not ideally suited to resolving issues of disparate treatment of gays. Gill may be the right outcome, but now may not be the right time. In this respect, Gill echoes a broader consideration affecting all attempts to litigate gay rights issues: the current composition of the judiciary and the current construction of the applicable civil rights laws ensure that most cases will be hard-fought, and that the consequences of a potentially precedential loss could be great.

To date, gay rights activists have had a stunning string of successes in court - far more than I would have imagined. (Where is Iowa, anyway?) Moreover, the track record of litigation is today much brighter than that of political action (we all know where California is, literally and figuratively). But sometimes I feel like we are living on borrowed time; I worry that a major courtroom setback is right around the corner somewhere.

My preferred strategy for the long haul is legislation, not litigation. I would rather persuade people and their legislators of the rightness of equality for gays than litigate on not-overly-friendly terrain and risk a precedent-setting loss that could damage the cause for decades. All the same, I'll take victories where I can find them, however fleeting they are. So maybe a small glass of bubbly won't hurt.