The Animus Standard and the Ideological State

on December 12, 2014

Photo Credit: jolantasketch.blogspot.com

With the prospect of homosexual marriage being imposed nationally now before us, and the resolute denial of conscience rights even in such conservative states as Arizona and Kansas, faithful Christians are now faced with years in which they will be penalized in life, in business, and in the professions for our overarching commitment, obedience to God. Biblical faith, which inescapably means that there can be no compromise with sin, including that of sodomy, may become the faith of a dwindling minority, but, contrary to the expectations of sexual revolutionaries, it cannot be extinguished; God will always have a faithful remnant on earth.

As people sometimes do at such losses as the end of a friendship, or the loss of a job, we naturally review the events leading up to it, to see how things might have been different. Although social conservative spokesmen correctly identify such things as changed understandings of truth, the diminished moral and spiritual basis of society, and the wider sexual revolution, as far as the outcome in this country was concerned (and perhaps many others, as the world in some measure follows America’s lead), the truly decisive factor in the end was the power of the Supreme Court. The court in its 1996 (Romer vs. Evans) decision voided a Colorado constitutional amendment that prohibited the kind of local civil rights laws that deny liberty of conscience against facilitating homosexual behavior, voided all sodomy laws in 2003 (Lawrence vs. Texas), and voided a key part of the Defense of Marriage Act in 2013 (United States vs. Windsor). Most importantly, in each case, the court made clear it was acting from a moral basis, attacking the Judeo-Christian morality (and that of other religions) as cruel.

While contrary to popular impression, religious motivation is not unconstitutional in law and policy (although it requires secular justification, a requirement the court makes of no other kind of motivation), Biblical doctrine condemning sodomy has been ruled unconstitutional as a motivation for law. This places believers at an enormous disadvantage in secular defenses of traditional marriage, and even in defending the individual and corporate right of conscience.

Some kind of tie-in to the language of the Constitution was required. This was somewhat amusingly made evident in Justice Kennedy’s switch in Lawrence decision from the earlier “equal protection” basis to a “liberty” basis. But the earlier basis in the Romer was equal protection, held to be violated by the hate (or as the court more elegantly termed it in Latin, “animus”) of the American majority toward homosexuals. Since in the jurisprudence the court uses this in itself renders laws unconstitutional, with no justification of the animus legally possible, and since sodomy is intensely despised, there was no hope of any other outcome. In the later Lawrence decision (2003), the court refused to accept the distinction between persons and acts that social conservatives insist on, with the result that there is now a behavior based category of persons in process of gaining protected status, not one with immutable characteristics (like race or sex). It is not yet clear if this refusal to distinguish between persons and acts pertains only to penalties for homosexual behavior (as it did in Lawrence decision), or to any legal requirement to accommodate homosexual behavior (which was the real issue in Romer decision). Indeed an extrapolation, the court simply imposed its own moral sensibility and that of like minded persons on an unwilling nation. In effect, the court decreed a new morality for the nation, in which sodomy is virtuous and opposition to it evil.

Since our own life and the religious freedom needed to protect it will require that we struggle with the animus standard and its condemnation of exclusivism in laws, regulations, adjudication, and public life generally, we need to consider not only how it affects religious believers and the nation in the area of homosexuality, but more generally the kind of society it will lead to.

The animus standard establishes an ideological standard in law, in which ideas deemed to be oppressive must be excluded as a motivation for law and public policy. Based on the idea of equal protection of the laws (in Amendment 14), it claims that laws do not give equal protection if they are based on hostility toward a particular group of people. “Animus,” of course, is nowhere mentioned in the Constitution; Americans in previous generations, and certainly the founding fathers, would have been surprised by it.

It is impossible to separate animus from politics; it is an inescapable part of politics. Even intense animus should not render a political position illegitimate in public discourse, law, or policy – it may be justified, and if justified, the animus should exist in law. To eliminate animus from politics, courts (or some other ideological authority, such as a human rights commission) would have to decide who is right in a political conflict, render judgment for them, and charge the opposition with animus. Effectively, this is what was done in all three homosexuality decisions (Romer, Windsor, less directly, but relatedly and forcefully, in Lawrence).

The Moreno case (1973) was an early example of the use of the animus standard to exclude social conservatism from law and public policy – nontraditional “hippie” families could not be denied food stamps, the Supreme Court found – although this was well justified if the natural family is taken as an ideal that the law is striving to uphold. The case shows that the Supreme Court considered social conservative motivations against the 1960s counterculture to be unacceptable, and thus, as far as the court was concerned, unconstitutional – the same principle, or perhaps better, the same attitude, was later applied to homosexuality decisions, in the case of Windsor, explicitly attacking Judeo-Christian morality.

The case also shows a tie-in to the later (1992) Casey decision’s “mystery clause” which (in)famously claimed that the court could find rights based on a general concept of liberty, in which “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Since everyone has a right to define their own reality, animus cannot be justified by appeal to human nature or the current human condition. Although the constitutional justification of the animus standard is “equal protection,” clearly the court was saying that animus itself is wrong (and by act of the court’s will, unconstitutional).

No law, regulation, or public policy has any rational basis if the mystery clause is consistently applied, since each individual may define his or her own reality. If consistently applied, the mystery clause and the animus standard would require that all activities, no matter how horrific, be legal, since all laws direct animus at a class of violators, and thus animus must have been present in their conception.

Of course, the standard won’t be consistently applied, justifying, for instance, mass murder – it will be applied only against social conservative ideas, which are deemed to be oppressive. The spread of the animus standard could reasonably happen with another Democratic presidency, a solid liberal majority on the Supreme Court, and an increasing liberal grip on the federal judiciary. As an example, welfare reform could be found to be based on hatred of poor people (which may be a long shot, but which is what many leftists in fact believe).

Like “hate speech” laws or regulations, which put defendants in the position of having to justify ideas deemed oppressive which they should be able to express without justification to legal authorities, so the animus standard requires that laws be justified against claims of ill will, with the courts likely to understand ill will as is it claimed to exist by the liberationist ideologies the Left.

The animus standard holds the potential of superseding politics entirely with the ideological judgments of courts, human rights commissions, or other ideological authority deemed competent to judge who the oppressors are and who are the oppressed. Any attempt to distinguish between laws based on animus and others where animus is only marginal (and thus constitutional) are subjective, just as political opinions in general are. Indeed, although it may not happen soon, it is possible that all of life, public and private, could be governed by such an authority in a thorough going ideological state. This is apparent in more secular Europe, where the proposed European Equal Treatment Directive would extend the antidiscrimination principle that it is impermissible to treat persons in protected categories “less favorably” (“direct discrimination”), or as the indirect result of applying some other rule (“indirect discrimination”) in cover all economic and social relations. Especially outrageous is the “carte blache” to the cultural Left in which personal behavior which “creates an offensive or humiliating environment” will be an actionable offense with a human rights bureaucracy, and ultimately, with courts.

Conservatives should not accept the animus standard and try to justify laws in terms of it, but should attack the standard itself, as being incompatible with democracy and establishing an elitist state. Consistent with this, it would be wise not to use the standard against laws or policies conservatives do not like (such as the anti-Catholic Blaine amendments or the HHS mandate’s ultimate origin in stacked, pro-abortion NIH panels).

As the animus standard is essentially a moral appeal, it must be answered from morality. Impugning the motives of voters should be attacked as outrageous, and an attack on the essence of democracy, as is the attack on the actions of legislatures. Neither divine nor natural law is appealed to by the standard (the only two possible universal norms, both rejected by social liberals), but rather the sensibilities of those making the charge of animus. And since, as noted, any activity can be the object of animus (and the worst activities are the object of intense animus), there can be no consistent application of the standard without invalidating all laws.

While the “mystery clause” has been roundly condemned, social conservatives should continue to condemn both it and the associated animus standard, continually criticizing the standard and never accepting it. We can’t expect that the Supreme Court will soon admit it is wrong (although it should) and overturn the standard. While liberals feel no compunction about overturning precedent with conservative decisions (and of course are greeted with complicity or even applause by the law profession culture), the court would face the wrath of the same legal culture by overturning the animus standard, something even conservative justices might be loath to endure.

Yet as long as the standard remains, understood to mean that ideas some group finds oppressive are excluded from law, the threat of an ideological state hostile to Christianity will remain. By continually criticizing and pointing out the outrageous nature of the animus standard, we may hope that the court will be reluctant to apply it in the future, and in the long term, we can hope the standard will be formally repudiated.

  1. Comment by mcorps on December 14, 2014 at 9:20 am

    The writing in this piece is difficult to follow and trying to understand just what the author would like to see happen is not clear. I think he wants to see laws outlawing “Sodomy” (why not Gomorrahy). While such behavior may be a sin in the eyes of God, in the eyes of man there is no victim. Perhaps, if certain models of the afterlife are correct, people engaged in Sodomy will be judged. It is not, however, our job to write Mr. Plasterer’s ideas of sin into law and enact criminal penalties for violations of it. After laws against Sodomy, we might find ourselves with laws against bacon, laws against ploughing with an ox and a mule harnessed together. How about fabric containing more than one source of fiber? Blaspheming Mohammed or Allah comes to mind. The possibilities are endless.

  2. Comment by RickPlasterer on December 15, 2014 at 1:29 pm

    mcorps,

    Thank you for your comment. I am afraid “the possibilities are endless” if the standard is not repudiated.

    Certainly I am not a lawyer or legal scholar, but writing and thinking much about the legal conflict between traditional Christians, secularists, and sexual liberationists, I do believe that the difficulty in analyzing the animus standard is that the standard itself is wrong and cannot be impartially applied. Its essence seems to be “you just say that because you don’t like me.” It sets aside any reasonable discussion or justifications of the position taken (including the position taken in law) for the claim that all justifications are a pretext for hate. There is nothing wrong with animus in itself, it may be justified. As I noted in the article, how much animus is there towards murderers (or thieves)? Enormous animus, but it is justified. Yet justification is precisely what is not allowed in the legal conflict of recent years over homosexuality. As Susannah Pollvogt said in the last sentence of the article I linked to in paragraph 4 of my article “The question in an animus case is not whether the animus is justified, it is merely whether animus exists.” In court judgments against Catholic adoption agencies or in voiding the federal part of the DOMA, appeals to religious freedom or the superiority of the natural family are dismissed as hate.

    Part of the problem is that homosexuality is a behavior based category, not an immutable category. If there were a “gay gene” perhaps a scientific test could identify people who fall into the protected category (which would mean that people who believe they are homosexual but don’t have the gene don’t fall into the protected category). But no such gene has been identified. Martin Luther King’s maxim that people should be judged “not by the color of their skin, but by the content of their character” cannot apply, because individual desires and behavior are the basis of classifying people as homosexual. Thus any activity might be judged to be the object of unjustifiable oppression and hate. People who use illegal drugs, for instance, form a definite subculture in our society, using drugs is what’s most important in their lives, and are the object of public animus (referred to by such names as “junkie”). Perhaps equal protection requires that their drug use be accommodated, rather than penalized, as it now is.

    In reality, a finding of animus amounts to saying that a particular public animus is unjustified and irrational (in the court’s opinion). It is therefore “off the table” for politics (and society, as far as the law bears on society). As I noted in the article, “all laws direct animus at a class of violators.” Since behavior is an acceptable basis for classification, and since the same Supreme Court also declares that defining one’s own reality is the moral ideal, potentially any behavior could be found to be above question.

    The animus standard makes matters of opinion, which should be open for political action by legislatures (such as whether homosexuality or drug use are harmless), into dogmas, about which there can be no question. Use of certain drugs might seem unquestionably harmful, yet with enough medical support, even heroin use might be stabilized. You have advanced the common claim that homosexual behavior is “victimless.” Yet this ignores the harm to society caused by homosexual promiscuity, both the financial cost of the state’s support to patients, and the tragedy of people uninvolved in homosexual activity who nevertheless suffer illness and death. And since men especially are given to promiscuity, we can expect this problem to continue.

    But another part of the problem with the animus standard is that it invites the cultural Left’s ideological analysis. I tried to point this out both in the present article and another one I wrote shortly after the Windsor decision (July 19, 2013). Consider the official names of communist countries (the German Democratic Republic, the People’s Republic of China, etc.). These were claims that all of society is carefully monitored, to prevent the influence of oppressive ideas. As the Left’s understanding of “hate” is slowly enacted into law in the Western world, Western societies are increasingly resembling the ideological states of the old communist world on cultural issues, especially on religious freedom.

    Should the sodomy laws be brought back? Given our society, it would be impractical and most unlikely, but it should be open to reasonable consideration legislatures, not a forbidden action, as it now is. As I have tried to say in many other articles, the force of the repudiation of traditional sexual morality is such that, not only is it found to be unworthy for society as a whole, but even the rights of corporate and individual consciences are denied, their claims stigmatized as hate. Painful though it may be, moral questions should be open to consideration by the law.

    Rick Plasterer

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