Gay marriage is on a roll, and victory can bring hubris. A number of voices have begun to insist that any opposition to same-sex marriage is “bigotry.” Thus, for example, a popular dating site demands that its patrons stop using a specific web browser because an official of the browser company once opposed same-sex marriage. Thanks, but if I were dating, I’d find a less paternalistic dating site. That level of outrage is justified only if opposition to gay marriage is moral leprosy, like white supremacy or Holocaust denial. But is all opposition to gay marriage inspired by hate? And if it isn’t, does that make a legal difference?
Adam Liptak shrewdly explored this question in a recent column in The New York Times. The key to Justice Anthony Kennedy’s thought, and vote, he notes, is the concept of “animus.” Anti-gay measures like §3 of DOMA, Kennedy has written, are adopted for the sole purpose of making gays less than equal, and thus are unconstitutional.
Kennedy’s antagonists on the Court, however, react to the “animus” claim like World Cup footballers rolling on the ground in simulated agony. They insist that the only meaning of “animus” is “bigotry.” Justice Antonin Scalia, in his Windsor dissent, claimed that Kennedy was portraying the opponents as “unhinged members of a wild-eyed lynch mob.”
There’s a misconception here—that without hatred, there can be no legal “animus.” Consider Scalia’s own explanation, in his dissent in Lawrence v. Texas, of why a state can outlaw gay sex. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
In other words, the majority did not hate gay people, they simply wanted to keep them apart from others.
That wish to exclude a group from full equality must be backed by something more than dislike, or disapproval, or suspicion, or unfamiliarity. Otherwise, no matter how calmly it may be expressed, it is “animus.” People who feel that wish, however, may not feel hatred at all; calling them “bigots” doesn’t advance the dialogue. Instead, patient argumentation should address their arguments, not assault their character. Argument breaks down fear; assault intensifies it. And assault recasts the moral valence of the movement: Instead of crusaders for equality, marriage advocates begin to seem (as Alito has suggested) intolerant and “bigoted” themselves.
Gay marriage has been on a roll. That roll is likely to continue, Simmons's decision notwithstanding. But hubris is a mortal danger to any movement, and gay-marriage activists must avoid premature triumphalism. Assaulting opponents as “bigots” is poor strategy. Many of them, like Simmons, are simply confused and a bit afraid. Asking the Supreme Court, and in particular Kennedy, to brand them all as evil may backfire.