By Stephanie Wang
Mar 3, 2015
Why do you oppose same-sex marriage?
Indiana University sociologist Brian Powell posed this question to hundreds of people across the nation as part of a research project.
He was curious to see if what people say actually matches the legal arguments being made to justify bans on same-sex marriage.
The legal arguments are rooted in public policy considerations. The public responses decidedly were not.
From his survey results, published recently in the sociological journal Social Currents, here's one response that reflected the majority of opposition to same-sex marriage:"Because I don't believe God intended them to be that way."
"It's beastly," said another. A third: "Well, they're sinners."
Powell acknowledges there is nothing wrong with showing moral disapproval. People have a right to their beliefs and values.
But, if public opinion — either through pressure on lawmakers or directly at the ballot box — drives public policy, Powell's research suggests that the real motivation for banning same-sex marriage is moral disapproval over homosexuality.
And that, he says, could present a particular challenge for supporters of traditional marriage: Moral disapproval doesn't make a valid legal case. In fact, same-sex marriage proponents argue that would be unconstitutional.
That's why the longstanding courtroom debate over same-sex marriage has begun to address a particular legal term: "animus."
Animus is the notion that a law has no compelling public interest and is driven merely by a moral disapproval so strong that it causes harm to a group that's viewed as inferior. In the case of same-sex marriage, proponents argue that harm is to deny gays and lesbians the basic right to marry.
"This isn't about forcing people to believe or not believe in something," said IU law professor Steve Sanders. "This is saying marriage is controlled by government, and government shouldn't discriminate against people for flimsy reasons."
Sanders is co-counsel on an amicus brief from the Human Rights Campaign that claims state bans on same-sex marriage are unconstitutional because they're based on animus. The brief will be filed in the Supreme Court same-sex marriage case, which is poised to become the definitive ruling on the issue.
But those fighting same-sex marriage adamantly disagree that their stance is fueled by animus. Such an argument, they say, places blame on every person who supported same-sex marriage bans as having evil intent.
If animus motivated Indiana's former same-sex marriage ban, said Curt Smith of the Indiana Family Institute, "that means that the 150 legislators — a majority of whom supported it — and former Gov. Frank O'Bannon had to have hatred for gays in their hearts when they voted for and supported that bill. I just think that's a wrong analysis, but it's also a tremendous discredit to the men and women who serve in the legislature and our governor."
Animus has become a word "grossly misapplied," he added.
"It's just an idea that's out there that's become a place to hang your hat," he said.
Instead, he points to specific public policy considerations: that traditional marriages produce "wonderful benefits" for couples, society and children — and he thinks research will show same-sex relationships do not bear out the same effects.
'Motivated out of spite'
But proponents of same-sex marriage argue that the public policy arguments are flimsy, at best.
For example, one such public policy argument is that marriage promotes "responsible procreation" and thus limits the number of children born accidentally.
But since same-sex couples can't naturally reproduce, they were excluded from the definition of marriage.
Judge Richard Posner addressed this in the recent 7th U.S. Circuit Court of Appeals majority opinion that maintained same-sex marriage bans were unconstitutional in states including Indiana and Wisconsin.
Posner wrote that if responsible procreation were a real justification for banning same-sex marriages, the state also wouldn't allow people who are infertile to marry.
He added: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."
That policy argument, Posner wrote, "is so full of holes that it cannot be taken seriously." He concluded that the states failed to show a valid policy interest for discriminatory bans on same-sex marriage.
Sanders, the IU law professor, explained further: If states merely want to "protect marriage" by denying same-sex couples from wedding, then why also refuse to recognize gay marriages from other states, prohibit civil unions and deny domestic partnership benefits?
"To do something like that," Sanders said, "begins to feel like it's more motivated out of spite than any sort of sensible public policy."
Truth is 'assuredly complicated'
But if that sounds like animus, not everyone — or court decision — concurs.
The 6th Circuit Court of Appeals, which oversees states including Ohio, didn't agree that animus existed in its evaluation of same-sex marriage bans. The court upheld such bans, a decision out of chorus with other circuits that propelled the issue to be heard this summer in the U.S. Supreme Court.
"For most people," read the 6th Circuit majority opinion authored by Judge Jeffrey Sutton, "whether for or against the amendment, the truth of why they did what they did is assuredly complicated, making it impossible to pin down any one consideration, as opposed to a rough aggregation of factors, as motivating them."
Sutton also refused to impugn traditional marriage supporters for wanting to uphold what has been a longtime social norm that has only recently been thrown into flux.
"It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families," Sutton wrote.
He accepted policy arguments for responsible procreation as a valid, rational basis for state bans while acknowledging flaws. And even if he didn't find animus, he was careful to note that allowing same-sex marriage seemed inevitable.
Still, he wrote that should be a decision left up not to the courts, but to the democracy — "as fellow citizens seeking to resolve a new social issue in a fair-minded way."
Backlash — or fewer fears?
Powell's sociology research notes that public opinion on same-sex marriage has been changing, and he gives a nod to some interesting questions that could tendril off the concept of animus as the debate moves forward.
What happens to public opinion if same-sex couples gain more legal rights?
Will it "result in public backlash"?
Or, Powell wrote, will it subside fears and animosity toward same-sex couples?