Evolving Values, Animus, and Same-Sex Marriage

Responding to Justice Scalia’s provocative questioning during oral argument in the same-sex marriage cases, I contend in this Essay that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that, in the words of Professor Alexander Bickel, the Court’s recognition of this right “will — in time, but in a rather immediate foreseeable future — gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible groundings for such a ruling: first, substantive due process; second, heightened-scrutiny equal protection; and third, rational-basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. In my judgment, however, the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.