ABSTRACT
Finding Animus in the Rejection of Same-Sex Marriage The United States Supreme Court’s 2013 opinion in United States v. Windsor 1 strongly suggested that any view of marriage that excludes the possibility of same-sex unions is irrational, even hateful. Justice Kennedy’s opinion for a fi ve-Justice majority in the 2015 Obergefell v. Hodges , 2 did likewise. Ultimately, Windsor turned on the majority’s holding that section three of the Federal Defense of Marriage Act (‘DOMA’), 3 passed in 1996 by large majorities in both houses of Congress and signed into law by President Bill Clinton, refl ected a ‘bare desire to harm’ same-sex couples, a legislative purpose which, the Court said, could never form the basis of a valid law, given the Constitution’s guarantee of equality. 4 Obergefell rested for the most part upon a new interpretation of the Fourteenth Amendment’s Due Process Clause – now held to include rights discerned by the ‘new insight’ and ‘reasoned judgment’ of fi ve Justices. 5 A substantial portion of the majority’s ‘insight’ consisted in its conclusion that denying a right to same-sex marriage ‘demean[ed]’ gay and lesbian citizens, even while opponents of same-sex marriage insisted that same-sex marriage itself ‘demean[ed]’ 6 an institution that had always linked marriage recognition primarily with the interests of children.
