Leave a Comment Gregory in Salt Lake City
Animus Thick and Thin [Stanford Law Review]
March 20, 2012
“There is a concern among supporters of marriage equality, especially those in the legal academy, that the decision of the Ninth Circuit in Perry v. Brown[1] was too good to be true or, perhaps, too clever to be sustainable.[2]
“I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.”
Longish, but well worth reading.
4 Comments Leave a Comment
1.
Marta | March 20, 2012 at 8:49 am
This is a great counterargument to NOM & Co. that I have not seen articulated in such a clear and logical way before:
"So for the court to accept that accidental procreation is a plausible state interest, it has to accept that the state could have a legitimate interest in protecting only the children of unplanned and unwanted pregnancies."
The state has an interest in protecting all children, unplanned or not. Therefore, channeling responsible procreation is only a SUBSET of a the state's goal of protecting all children, so it cannot be used to justify excluding LGBT's from marriage.
2.
Marta | March 20, 2012 at 8:55 am
"Under the analysis in Perry, such a vote may or may not be constitutional, depending on a series of factors… [including] the primary campaign materials relied on to persuade voters to adopt it…
What would be the practical and productive result of such an approach to assessing the constitutionality of voter initiatives? One effect would surely be that the proponents of this kind of constitutional amendment would curtail the opprobrium quotient of their proposal and their rhetoric. To withstand a post-election challenge, they will likely try to link more carefully their initiatives to noninvidious goals.
In that way, adopting the mechanism suggested in Perry would encourage self-policing of some of the most hateful sorts of anti-civil rights campaigns. It would not, and consistent with the First Amendment should not, eliminate bigoted arguments in the public sphere. But the knowledge that the judiciary would serve as a check against the darker impulses of human nature might mitigate the worst of them."
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Another very interesting point.
3.
_BK_ | March 20, 2012 at 9:45 am
Thanks for perusing the material, Marta.
4.
Bob | March 20, 2012 at 10:33 am
I have another take-away on this particular point…
"One effect would surely be that the proponents of this kind of constitutional amendment would curtail the opprobrium quotient of their proposal and their rhetoric. To withstand a post-election challenge, they will likely try to link more carefully their initiatives to noninvidious goals.
In that way, adopting the mechanism suggested in Perry would encourage self-policing of some of the most hateful sorts of anti-civil rights campaigns. It would not, and consistent with the First Amendment should not, eliminate bigoted arguments in the public sphere. But the knowledge that the judiciary would serve as a check against the darker impulses of human nature might mitigate the worst of them."
By restricting the ability of ballot proponents to craft their arguments, their arguments themselves would (absent some unusual application of creative dog-whistling) blunt the ability of bigots to make arguments. This would of course bolster rational discourse on the issue and make such ballot measures as Prop 8 less likely to succeed in the long run.
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