Bowers v. Hardwick

Justice White wrote the majority opinion in Bowers v. Hardwick, with Justices Burger and Powell concurring; Justices Blackmun and Stevens dissented. In the majority opinion, Justice White points out the historical role of morality in the law: “This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”³ And, “Proscriptions against that conduct have ancient roots.”⁴ “A very long time” and “ancient roots” cast the proscription as at once ahistoric (natural) and transhistoric (continuously or repeatedly decided). Justice Burger's concurrence reiterated the prohibition's transhistoric nature, noting, “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”⁵ The majority opinion then connects that transhistoric prohibition to the present ruling: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. This is essentially not a question of personal ‘preferences,’ but rather of the legislative authority of the State.”⁶ The move from the first to the second sentence carries the argument directly from “moral teaching” to “authority of the state,” thus casting moral disapproval as a natural foundation for law. But when that sentence glides over to and lands on the authority of the state, rather than on personal morality per se, it elides the moment when morality becomes law and renders this a judicial rather than a personal – in the sense of emotive or experiential – moment.

The dissents, written by Justices Blackmun and Stevens, focus on the ruling as an action on individuals, opposing the idea that the case is about a fundamental right to engage in homosexual sodomy. Rather, writes Justice Blackmun in the dissent, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely “the right to be let alone.”⁷ In this formulation, again to use a literary vocabulary, the right at hand is a right not to be authored, not to be made into a minor character (and then written out of the plot), not to be acted on. The word sodomy appears only in citations of others, and in its place comes the phrase “private, consensual sexual activity” – a change in vocabulary that underscores human subjectivity and privileges the personal sphere. Writes Justice Blackmun, “Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.’”⁸ The use of such words as emotional enrichment, intimacy, sensitive, family life, and intensely personal bonds takes the contested act out of the realm of criminal and biblical prohibition, thus removing the law from the role of main character, and places it in the context of universal human experience. Justice Blackmun insisted on this universality and cited it as a foundational reason to guard against disapproval-based rulings: “It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we [we to refer to the justices, and the divergent use of we among liberal and conservative justices is striking] should be especially sensitive to the rights of those whose choices upset the majority.”⁹ So with respect to difference in feeling, on the one hand we see issues “touching the heart of individuals,” we see “sensitivity,” and on the other hand, we see choices (the issues “touching the heart”) that can upset the majority. Cast then as an endeavor to mediate upset with sensitivity, or to be more precise, to mediate the judicial reach of upset with sensitivity, the dissent casts the Bowers ruling as a victory for upset, an active fusion of disapproval and judgment.¹⁰

Justice Blackmun, in his use of time and in his mention of past cases, writes much as a character or reader concerned with sideshadowed possibilities in the Russian sense, as Morson described it in Narrative and Freedom, with a shade of Chekhovian disappointment or rue, concerned with past roads taken and not taken to arrive at the current majority decision and at his position with respect to it.¹¹ That the sideshadowed possibilities did not constitute the main road becomes a matter for regret and indignation, and even of disapproval, but not of animus per se. It is worth noting that sideshadowing as Morson described it was distinctly germane to matters political. As he writes, “When sideshadowing is used, it seems that distinct temporalities are continually competing for each moment of actuality. Like a king challenged by a pretender with an equal claim to rule, the actual loses some temporal legitimacy. It can no longer be regarded as inevitable, as so firmly ensconced that it does not even make sense to consider alternatives. Or to adapt one of Bakhtin's favorite metaphors, a present moment subjected to sideshadowing ceases to be Ptolemaic, the unchallenged center of things.”¹² What animus does, I propose, is render equal claims unequal. Where an argument may be short either on moral legitimacy or on majority support, animus can furnish a rhetorical supplement for that lacuna, lending illusions of “firm ensconcement.”

Another stylistic component of Justice Blackmun's dissent is the numerous references he makes to the individual – as a person, a character as it were, whose fullness and possibilities are determined at least in part by what sort of legal subject he is determined to be. Justice Scalia, in contrast, dissenting in Lawrence v. Texas, the 2003 case that reversed Bowers v. Hardwick, in his use of time and in his intimation of alternate possibilities, dissents in the voice rather of a momentarily and unjustly silenced author than a lamenting character or reader. That dissent casts as its primary protagonist not the human legal subject but instead the law's dominance of the individual. In each of the twenty times that the word person appears in the Lawrence dissent, it is in quotations of the majority opinion or in descriptions of homosexuals as “undesirable.”¹³ The Bowers majority opinion prefigures the Lawrence dissent in its insistence that the case is about the legislative authority of the state rather than about individuals as either authors or characters. Clearly, there are various sorts of disapproval, which range from detached criticism to mild distaste to out-and-out repulsion. My interest here is in the way disapproval as animus resonates as, and then becomes, judgment, with all the real-world legal force of that word. I am also interested in the ways in which disapproval so presented – whether its target be homosexuals, the opposing side, the opposing side's ruling, the opposing side's reasoning – tends to resist dissent, tends, that is, to resist opposition, even when that opposition comes in the form of a majority opinion.

Romer v. Evans: In Defense of Animus

To examine the intersections of disapproval, animus, judgment, and law, I turn to the case of Romer v. Evans. This 1996 case struck down an amendment to the Colorado state constitution that would have “precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’”¹⁴ As in the later Lawrence v. Texas, Justice Kennedy wrote the majority opinion and Justice Scalia the dissent. This is a case explicitly about disapproval, and about the right of disapprovers to see animus-based judgment enforced in the law. In the majority opinion, which struck down the Colorado amendment and declared it unconstitutional, Justice Kennedy writes of that invalidated amendment that “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”¹⁵ This decision gives muscle to the plea made in the Bowers dissent, namely the plea that disapproval not dictate judicial decision making. The Romer majority opinion declares that animus-made-law amounts to an infliction of harm: “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury.”¹⁶

What is striking about the Romer dissent is that it reads the majority decision as a referendum not just on equal protection but on animus, and it responds to it as such. That dissent argues specifically for the power and judicial legitimacy of animus, underscoring its validity as a legal foundation and motivator. Because we are talking about dissent as such, and about the characteristics and tones of dissents, I propose that on the conservative side, the dissent tends to cast itself as the articulation of a majority opinion, whereas on the liberal side, the majority opinion tends to cast itself as a dissent. And that contrast has to do with the emotional tenor of the respective dissents, the one side claiming to be harmed by the animus of others, and the other side claiming the right to exercise animus without being troubled by claims of or complaints about harm. A dissent that includes or endorses might have more sentimental force than a dissent that excludes or condemns, but the dissent that excludes or condemns contains more emotional power, and therefore more rhetorical and legal power. On the one hand, this is not at all a new idea; there has been much written about the comparative belligerence of tone among conservatives as opposed to liberals – for the latter are thought, most often by other liberals, to come across as meeker. There have been liberal critiques of liberal tone and discursive strategy.¹⁷ And indeed, from a tonal or stylistic perspective, it seems that in the present cases, the side that wants to rule for more equal protection spends more time in analysis or sideshadow than in repudiation and refutation, more time in understanding or deconstructing the opposition to equal protection than in describing that opposition's structural problems, moral indefensibility, or ill-advisedness under international law. This dissent serves in a sense as literary criticism of the majority opinion rather than a resonant assault on it. But there has to be more than tone, more than discursive force, to explain the resilience of conservative animus-based arguments, and this something more is, at least in part, an intrinsic connection of animus to narrative voice and legal order.

In his dissent to Romer, Justice Scalia writes, “The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.”¹⁸

As Justice Scalia seems to recognize, hate has the reputation of weakening the person doing the hating as much as it harms the hated person. When the destructive Iago declares of Othello, “I hate the Moor,” he speaks from jealousy, and his subjection to the emotion is palpable.¹⁹ Hate also has no apparent judicial equivalent or expression: we have hate crimes but not hate legislation. Disapproval, however, is represented as an orderly and ordering emotion – congruous with the making of laws and the maintenance of moral order. The Romer dissent can therefore present both as a dissent from the majority opinion, and – very paradoxically – as a revindication of the law as majority voice. But unlike in Bowers, whose majority insisted that the case was about the legislative authority of the state but did not explore the state's emotional roots as such, this dissent makes clear that disapproval, and by extension disapproval-based law, speaks with two voices: the powerful canonical voice of the state and the furious voice of an individual being wronged or not heard. This entirely contradictory but nonetheless emotionally resonant combination builds (rather than falters) in response to arguments and dissents against it.

The dissents in these cases constitute a sort of argument, albeit a hopeless one, an argument of monologues, as it were, in which both sides claim grievance and articulate opposition – this is the nature of dissent – but in which one side wants its emotions, in particular its disapproval, to manifest in law and culture, indeed views law and culture as being based on disapproval, and in which the other side talks about the human harm done to the individual by that disapproval. And yet, while one side speaks about harm to the individual and the other side emphasizes harm to the law, it would be erroneous to suggest that discussions of harm to the law do not translate into, or are not founded on, an insistence that individual preference be respected. Dissents (and majority opinions, for that matter) that cast the law as the principal character are in fact viscerally personal in nature. As Ronald Dworkin writes, “We distinguish moral positions from emotional reactions, not because moral positions are supposed to be unemotional or dispassionate – quite the reverse is true – but because the moral position is supposed to justify the emotional reaction, and not vice versa.”²⁰ S. I. Strong quotes Dworkin in an article examining Justice Scalia's role as a modern Lord Patrick Devlin (proponent of antisodomy laws in 1950s and 1960s England), and then quotes that latter as supporting laws based on visceral personal reactions: “I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached.”²¹ Strong notes that Lord Devlin was in fact stricter in his application than Justice Scalia, permitting state enforcement of disgust only on those matters of morality that were unanimous.²² Justice Scalia does not insist on unanimity for disapproval, because he reads it as a natural position. In Bowers, too, we saw disapproval represented as a transhistoric position, an ancient one. Interestingly, with respect to disgust and its legal expressions, recent research establishes a connection between increased disgust sensitivity and conservative political leanings. A 2009 study published in Cognition and Emotion found, “Dispositional proneness to disgust, as measured by the Disgust Sensitivity Scale…was associated with greater self-reported political conservatism. This relationship appeared to be strongest for, but was not limited to, attitudes towards the ‘sociomoral’ issues of gay marriage and abortion. Specifically, disgust sensitivity was related to a greater disapproval of gay marriage and a greater disapproval of abortion.”²³ A contemporaneous article in Emotion found, “The more disgust sensitive participants were, the more they showed unfavorable automatic associations with gay people as opposed to heterosexuals.”²⁴ This latter study differentiated “judging behavior morally wrong” and finding it to be “objectionable on an intuitive level”²⁵ – in other words, to use Dworkin's terms, between moral reaction and emotional reaction. At the same time, the authors write, “Disgust is thought to be especially important in shaping what have been called moral intuitions – moral judgments that arise from psychological processes that are not fully accessible to consciousness.”²⁶ In this formulation, the desired order of judgment that Dworkin outlined would not be possible, because the emotional reaction would precede – shape, to use the words of the study – the moral reaction.²⁷ The interaction of antagonism and judgment, or the maintenance of their interdependence combined with the illusion of their separation or separability, is crucial to the opinions at hand. The effectiveness of their interdependence, combined with the illusion of their separability, works to activate disapproval or animus within the law, and then again at the cultural level to keep disapproval-based laws on the books.

A Culture of Animus

In an article on cultural dissent – “a movement away from imposed cultural identities to a new age of autonomy, choice, and reason within culture” – Madhavi Sunder writes, “Under current law, cultural dissenters have either a right to culture (with no right to contest cultural meaning) or a right to equality (with no right to cultural membership), but not to both.”²⁸ Reading the case, Boy Scouts of America v. Dale, which had to do with the right of the Boy Scouts of America to exclude a gay scoutmaster, she notes the “top down” perspective on culture and cultural parameters shared by the majority and the dissent: “From an anthropological perspective, both the majority and the Stevens dissent in Boy Scouts got it wrong. Both sides in the case presumed culture is static, imposed, bounded, homogeneous, and unitary, subscribing to the outmoded view of culture as a ‘thing.’”²⁹ Sunder's discussion of law's hand in culture is pertinent here because, on the one hand, it points to ways in which disapproval functions as a dissent-resistant emotion, and on the other hand, it points to ways in which disapproval-based law functions as a culture even as it claims to function in support of a culture that is separate or separable from it. As Sunder explains, “In the name of preserving cultural distinctiveness, freedom of association law allows cultural leaders to legally exclude those whose speech challenges cultural norms and threatens to ‘dilute’ cultural distinctiveness. But law's valiant effort to rescue a culture's nomos – by effectively taking a culture back to a time when it was more distinct, insular, and internally homogeneous – significantly diminishes the possibilities for greater autonomy and equality within culture.”³⁰

If society is public and cultures are private, then the binary that Sunder describes would not operate on the social level, but there are important ways in which it does. The connection of the judiciary with cultural definition is of course not a new concept. Justice Scalia himself in the dissent to Lawrence uses the term culture wars, and numerous commentaries on the Lawrence and Romer dissents underscore their “culture wars” resonance.³¹ Angus Campbell and Kenneth Norrie remark that that dissent is “notable for its ill-tempered tone…[;] it eschews any pretence of subjecting the issue to a rigorous legal analysis.”³² Although Sunder's article examines the role of the law in determining what culture is (both what a particular culture is and what the word culture means), I am trying to see how disapproval and animus allow the conservative side to treat its culture as a law, even as it treats the law as a cultural expression, and how it resists dissent in the name, or by means of, that circular conflation.³³

Moral Opprobrium and the Voice of the People: The Opposite of Animus

A dissent that tries to reclaim what has been represented as negative space – for example, the homosexual population – has an uphill battle. One reason for this is that animus is an effective instrument for dulling opposing voices. As Stephen Rich noted, despite Justice Scalia's insistence that “judgments are to be made by the people, and not imposed by a governing caste that knows best,” Colorado's proposed amendment would have weakened precisely such judgments through what Rich called “strategic majority construction.” As Rich puts it, “This term describes the scenario in which a majority of the electorate uses its majoritarian status at one jurisdictional level in order to repeal the rights of an unpopular minority at various subjurisdictional levels of government.”³⁴ In addition to this structural obstacle, though, animus (and here we remember the majority opinion in Bowers) has a cumulative and historical force.³⁵ The language of Justice Scalia's dissent in Lawrence, in the phrase “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’” illustrates an interdependence between public sentiment and written law.³⁶ “The statute seeks to further the belief of its citizens” is a perhaps unwittingly ambiguous sentence, symbiotic and multidirectional. This is not to say that public sentiment cannot overturn written law, but rather that written law, particularly with animus inscribed within it, is intended to act on public sentiment and not just to reflect it. Indeed, the actions that Justice Scalia compared to homosexuality as deserving of animus, namely murder and animal cruelty, are crimes with victims – the animus against those crimes therefore has a social, life-saving utility. An instinct for self-preservation and for avoidance of pain can explain animus against murderers and animal torturers, but animus against homosexuals – and public concurrence with or acceptance of such animus – finds no such parallel explanation. Such an explanation can be found, though, I propose, in the intersection between destructiveness and/or exclusion and cultural belonging.

Because homosexuality has no victims and inflicts no harm, and because therefore the comparison of homosexuality to murder and animal torture does not survive even the most cursory examination, the decision to harm and exclude homosexuals by means of legal judgment demands close examination. That examination in turns brings us to the question of what role animus plays in law making and to the question of whether animus and law making dovetail in the same way and to the same effect for liberals and conservatives.

On the one hand, as suggested by the psychiatric research that links increased disgust sensitivity to conservative political leanings particularly in sexual matters, Justice Scalia's desire to conflate homosexuals with murderers and animal torturers could be said to be rooted in disgust. And yet turning disgust (an individual and private emotional reaction) into an actual real-world act with real consequences (legal judgment) involves another step, and that is the introduction of animus as the melting point of revulsion and culture building. In this chapter, I use animus to mean “animating spirit or temper, usually of a hostile character.”³⁷ That animating spirit or temper, that hostility, is not at all limited to conservatives. Individuals of all political stripe can share animus as an emotion. Anyone is capable of feeling intense dislike, even with no apparent justification. But in the realm of legal decision making, there is an enormous qualitative difference between hostility toward an individual or group that has harmed others and hostility toward an individual or group that has not harmed anyone else. The latter sort of hostility – the drive to disenfranchise the already disenfranchised, to disempower the powerless, to weaken the weak, to marginalize the marginalized – is a particularly historically conservative phenomenon. When we consider examples of liberal hostility or liberal spite, we can find malevolence and anger, and even a desire to harm and to punish, but we do not, I contend, find the impulse to harm an individual or group that has harmed no one and that is already on the lower side of the human-authored social hierarchy. To use again Gary Morson's literary lexicon, we find liberal animus directed toward authors but rarely toward minor characters.

To make this point, I look at some instances of liberal dissent that do evince a hostile tone and that demonstrate a desire to punish the opposing side. My point is that although we see criticism, resentment, and contempt, we do not see malice – in particular, we do not see malice directed at those who are already cast as powerless. I look at three cases, all of which involve relatively vituperative liberal dissents against conservative majority rulings. In chronological order, in Korematsu v. United States (1944), Justice Mitchell denies the constitutionality and moral defensibility of internment camps for Americans of Japanese descent. In Gonzales v. Carhart (2007), Justice Ginsburg attacks the majority for lending ideological support to an abortion ban. In Citizens United v. Federal Election Commission (2010), Justice Stevens rails against the majority for considering corporations “persons” for electoral purposes.

What these cases have in common is resentment against the majority for what the dissenters view as morally untenable positions-become-actions. In Korematsu v. United States, the 1944 case in which an American-born man of Japanese descent challenged his internment in a camp on American soil,³⁸ Justice Murphy dissented with considerable “animating spirit and temper”: “I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.”³⁹ The foregoing is a strong condemnation of racist animus, and its vocabulary, “no justifiable part whatever in our democratic way of life,” “unattractive in any setting,” most notably “utterly revolting” (more on revolting later) and earlier in the opinion “the ugly abyss of racism,” bespeak intense disapproval. Racism as an idea comes close to becoming metonymic for the majority Court and its justices, but importantly, Justice Murphy's assault on racism never amounts to the formation of a detested and disadvantaged class. Were his revindication of an antiracist position articulated in the course of a ruling, it would have been more authoritative, of course, but even then, condemnation of a discriminatory ideology is not the same as malicious condemnation of an individual for acts that have no deleterious consequences. What Justice Murphy attempts in this case is redress or undoing of harm, whereas what Justice Scalia attempts in his dissent to Romer is the maintenance of a gratuitous – and gratuitously unbalanced – social and moral hierarchy, unconnected to ethical concerns. And yet I underscore Justice Murphy's use of the word revolting, a word that resonates with animus, hostility, and visceral aversion. That word brings Justice Murphy close to the realm of law-making animus, precisely because it weaves together moral judgment, the production of social forms, and visceral reaction.

Animus as I have discussed it in Bowers and Romer – and, I propose, as Justice Scalia defends it in the Romer dissent – is connected to meanness and destructiveness, not to the redress or prevention of social injustice. It has to do with the creation of social hierarchies for hierarchies’ sake. To be clear, liberal and conservative individuals are equally capable of cruelty, malice, and destructiveness. There are kind conservatives and mean liberals. Conservative political ideology as represented in the Bowers ruling and in the Romer dissent, though, is designed to give revulsion a real-world legal forum in ways that liberal political ideology is not. For that reason, liberal dissents that articulate even intense antagonism may arrive at animus, may work up to animus, but they are not rooted in animus, precisely because they are responsive rather than gratuitous in nature.

To further illustrate this difference, in Gonzales v. Carhart, Justice Ginsburg criticizes the majority decision to uphold the Partial-Birth Abortion Ban Act. Justice Ginsburg's dissent focuses on the absence of an exception for the mother's health, remarking, “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that could yield prohibitions on any abortion.…Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life.”⁴⁰ She then writes in closing, “The notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court – and with increasing comprehension of its centrality to women's lives.…When ‘a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.’”⁴¹

The final sentence in this dissent, combined with the earlier-cited statement about the hypocrisy of the Court's purported dedication to preserving life, is a powerful one. To say that the majority's actions are incompatible with its declared dedication to preserving life is to say that the case is much less about saving fetuses than it is about controlling and restricting women. Justice Kennedy had said in Romer that the (invalidated Colorado) amendment “seem[ed] inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests,”⁴² and Ginsburg's closing statement about “hostility to those rights” echoes that Romer ruling. By echoing that ruling – the very same ruling to which Justice Scalia had responded with a vigorous revindication of animus as law-making motivator – she implies that the majority is so driven by hostility to women's rights that it is ready to sacrifice women's lives in order to limit them. And yet although these ideas are all present in her dissent, although those resonant indictments of the majority's motivations are there, the dissent's direct antagonism is nonetheless comparatively muted. The use of a quote to close the dissent places the words and the thoughts at somewhat of a remove, holding them at a distance from the intense and visceral realm of “revolting.”

I contend that one of the principal characteristics of animus – as distinct from dislike and resentment – is precisely its visceral and almost physical nature: its close connection with disgust, repulsion, and hatred. The dissent in Gonzales was acerbic and powerful, but without that evocation of the visceral that, in the case of Scalia's animus-revindicating Romer dissent, at once justified and dramatized the drive to turn animus into law. A similar commentary can be made about Justice Stevens's dissent in Citizens United v. Federal Election Commission, the 2010 case that ruled against limitations on corporate funding of independent political broadcasts. Justice Stevens entered a lengthy, mordant dissent that essentially accused the majority of facilitating corruption. He states near the middle of that dissent that “whereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing BCRA [The Bipartisan Campaign Reform Act of 2002] and that the Court today discounts to irrelevance,”⁴³ and declares, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”⁴⁴ Toward the end of the dissent, Justice Stevens moves to a more intense ridicule, a more biting and ironic tone of accusation: “Our colleagues ridicule the idea of regulating expenditures based on ‘nothing more’ than a fear that corporations have a special ‘ability to persuade,’ ante, at 11 (opinion of Roberts, C. J.), as if corporations were our society's ablest debaters and viewpoint-neutral laws such as §203 were created to suppress their best arguments.”⁴⁵ And then, “The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”⁴⁶ Finally, closing with one of his best lines, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”⁴⁷

Stevens's compelling and forceful dissent casts the majority as transparently corrupt corporate partisans unwilling to represent the interest of the people or even to acknowledge the basic and obvious difference between a human being and a corporation.⁴⁸ The heavily ironic wording, though (“as if corporations were our society's ablest debaters,” “Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today,” “Few outside the majority of this Court would have thought [American democracy's] flaws included a dearth of corporate money in politics”), however mordant, however intelligent, amounts for all that to a criticism more cerebral – more complicated, more intellectually resonant, but precisely for those reasons more mediated – than Justice Murphy's “Racial discrimination…is utterly revolting.” Rather than shouting revulsion from the rooftops, Justice Stevens holds the majority decision at arm's length and examines it like an ironic and contemptuous scholar; and that distance, I contend, although it strengthens the intellectual force of the dissent, nonetheless mediates the animus present in it. No such mediation interrupts the force of more conservative expressions of animus, so absolute is the certainty that even groundless revulsion should find immediate and lasting legal expression.

To demonstrate the mediating effect of irony and to underscore the difference to be made with visceral language, particularly language that fuses the moral to the corporeal to the social, I turn for a moment to a liberal statement about comparative political treatment of rich and poor that does use the language of animus without mediation. This example comes from a newspaper article, not a court ruling, but the presence of one word demonstrates the force of vocabulary that intertwines morality, visceral reaction, and social formation. In a May 21, 2011, New York Times article about treatment of sexual topics in the Bible, Nicholas Kristof concludes by pointing out that as a matter of historical fact, the people of Sodom were condemned primarily not for homosexuality but for “lack of compassion for the poor and needy.” He writes, “‘Sodomy’ as a term for gay male sex began to be commonly used only in the 11th century and would have surprised early religious commentators. They attributed Sodom's problems with God to many different causes, including idolatry, threats toward strangers and general lack of compassion for the downtrodden. Ezekiel 16:49 suggests that Sodomites ‘had pride, excess of food, and prosperous ease, but did not aid the poor and needy.’ Hmm. ‘Did not aid the poor and needy.’ Who knew that that's what the Bible condemns as sodomy? At a time of budget cuts that devastate the poor, isn't that precisely the kind of disgusting immorality that we should all join together in the spirit of the Bible to repudiate?”⁴⁹

I introduce that passage to highlight the emotional and judgmental force of the word disgusting, which Kristof no doubt borrowed deliberately, along with his call to biblically based repudiation, from common antisodomy or antihomosexual discourse. This passage is striking on the one hand because it uses the vocabulary of animus in the spirit and pursuit of social justice, and on the other hand because in so doing, it points up the rarity of that use. When disgust takes on voice and direction in the form of animus, it gains a culture- and nation-building resonance that is largely unequaled – as a law-making and culture-building force – by disappointment, resentment, irony, drollness, or arch contempt. For this reason, Justice Murphy's dissent in Korematsu, which uses the word revolting, comes closest to wielding the force of actual animus.

Animus, I propose, has to do with force and direction as well as with visceral private reactions. There is a singleness of purpose to animus as a law-making and culture-building mechanism, and that purpose is to exclude, to push out, to write out of the plot. It is surprising that the visceral language of exclusion comes so powerfully to bear on those individuals and groups that have done nothing to harm others, whereas criticism of those individuals and groups that have harmed others – through discriminatory legislation, and so on – so often remains in the intellectually intense but politically relatively anodyne realm of the arch and ironic.

At this point, we can turn to the question of what sort of dissent or defense can be mounted against animus. What Justice Scalia seemed to envision, and to want to wait for, in the Romer dissent, was a judgment by the people for approval. Not only would the amendment that Romer struck down have weakened the judicial force of such judgments by intensifying top-down notions of right and wrong, but also the idea of voting for approval is problematic. The most frequently referenced opposite of animus is not endorsement or inclusion, but rather a division of animus from law, a distancing of the visceral from the cognitive. As Justice Blackmun wrote in the Bowers dissent: “It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.”⁵⁰ He was not seeking to convince the majority not to be upset, or to replace their disapproval with approval, but to convince them not to rule on the basis of their upset – to set up sensitivity as a barrier between upset and judgment.⁵¹ And yet the binary at work here seems to demand a majoritarian declaration of approval. Cass Sunstein wrote, “Lawrence was possible not because the court reached, all on its own, an ambitious and novel view of the nature of constitutional liberty, or because it attempted to read a controversial view of autonomy into the Due Process Clause. The decision was possibly only because of the ludicrously poor fit between the sodomy prohibition and the society in which the judges live. And if I am correct, Lawrence will have broad implications only if and to the extent that those broad implications receive general public support.”⁵² This may be true, but it is a problematic condition on the one hand because animus has proved a powerful emotional, intellectual, oratorical, and legal rallying force (in the sense of force of action demanding an equal and opposite reaction), and on the other hand because its most frequently cited opposite is not endorsement but a conscious separation of emotion and morality, or emotion and judgment.

Dissenting against Animus

One lesson to be learned from the animus-revindicating dissent in Romer is that people who dissent against conservative disapproval – even when that dissent from disapproval is proclaimed in a majority opinion rather than implored from the underdog camp – can always already be spun as marginal by association with the marginalized. The very endeavor to remove a disapproved-of class from the sphere of disapproval, and thus to remove it from the sphere of disadvantage, can resonate as antiorder, antilaw, anticulture. Because the law – the distinction between the criminal and the noncriminal – is based in so many ways on disapproval, on a division of acts into acceptable and unacceptable, animus contains its own argument and, as a discourse, exerts a continuing and consistent pressure. As Stephen Rich comments, “There are cases in which acts of state discrimination not only reflect pre-existing political powerlessness, but also actively contribute to conditions of powerlessness.”⁵³ To contribute actively to powerlessness is an act of animus and also an act of power. So it is within law and also within cultures: Sunder also writes, in an observation on culture that parallels Rich's comment about the law: “Law favoring the autonomy of the group over the autonomy of the individual tends to have the harmful effect of favoring the view of the association proffered by the powerful over the views proffered by less powerful members of the group – that is, traditionally subordinate members such as women, children, and sexual minorities. By always deferring to the association's leaders on the question of meaning, the Court has adopted a legal approach that may result in the power of the state being used to reinforce the powerful within cultural associations.”⁵⁴

Lawrence v. Texas

In Lawrence v. Texas (2003), which reversed Bowers v. Hardwick, Justice Kennedy wrote the majority opinion, with Justice O’Connor concurring; Justices Scalia and Thomas dissented.⁵⁵ This case, like Romer, is also emblematic of disapproval as a weapon both discursive and judicial. More precisely, it demonstrates how animus-based dissent can cast itself as a majority opinion precisely by raising the fist of disapproval. There is no parallel function, no threat, to be found in the essentially responsive or inactive (in the sense of not translating immediately into action) position of grievance and harm. Furthermore, this case demonstrates how animus against a disadvantaged individual or group becomes more intense when it is thwarted, taking on a compellingly punitive tone that ultimately exemplifies the conflation of animus and law.

In Justice O’Connor's concurrence with the majority opinion, she states: “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”⁵⁶ And then: “A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law.”⁵⁷ If law and literature studies have shown us anything, it is the importance of a compelling narrative.⁵⁸ But the truism more germane to a discussion of dissents and their various tones comes from sports; namely that the best defense is a good offense and that animus makes for an offense rather resistant to dissent. One side's dissent – the conservative dissent in Lawrence – comes in the form of upset that judicial action cannot be based on disapproval, that is, cannot be based on an instinctive or moral dissent from the class at hand. The liberal dissent in Bowers and the majority opinions in Romer and Lawrence, in contrast, express upset that another's disapproval – another's animus – has found legal expression. But this amounts to disapproval of a disapproval, which is an intrinsically vulnerable position. When one expresses animus against a group, to then turn one's animus, or disapproval, on another group (liberal justices) that is defending or lending its voice to the first group, that turn has a certain seamless continuity to it. There is no breaking of character, no alteration in strategy or direction. But when one has been arguing for inclusion and endorsement, particularly of a class of people who have been harmed by others’ animus and disapproval, to then turn and articulate animus against or disapproval of that opposing party involves a change in direction and emotional tenor. Not only does it involve an apparent reversal in emotional direction; it involves a move toward disapproval and even animus – in other words, toward the same emotion that had seemed loathsome, or at least problematic, when wielded by the other side. And yet to counter moral disapproval with a plea to simply remove moral disapproval from the argument has been equally problematic.⁵⁹

The majority opinion in Lawrence actually includes its own reference to disapproval, referencing public disapproval of Bowers as a precedent. Writes Justice Kennedy, “In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects.”⁶⁰ This, it must be noted, is a different sort of disapproval from the disapproval-based animus that Scalia celebrated in Romer, for one because its target is reasoning, or an intellectual process, and for another because as an intellectual process, that reasoning was directly responsible for discriminatory legislation that harmed homosexuals as a group. This disapproval of Bowers “reasoning” does not just dispute disapproval of homosexuality, but more to the point it disputes the opinion, or reasoning, or idea that there should be a role for disapproval in the application of laws. And yet these distinct targets of disapproval, one being a reasoning (animus should become law) and the other being a feeling (animus itself), are in fact absolutely inseparable on the conservative side. Animus against homosexuality comes to include animus against antianimus rulings, animus against those who would endeavor to limit the judicial scope of animus. It blurs cognition and emotion both in its articulation and in the responses it evokes, and it is dangerous for precisely that reason. What Baird and Jacobi called “attempts to instigate a change of heart in a colleague somewhere down the line” have no force because dissent – and in this case the dissent against animus comes in the form of a majority opinion – does not diminish animus, but on the contrary incites it.⁶¹

Regenerating Animus; or, Animus as Punitive

The Lawrence dissent demonstrates that animus functions as a unidirectional force that, when thwarted or examined, comes back with renewed antipathy. The Lawrence dissent, written by Justice Scalia and seconded by Justice Thomas, opens with the phrase, “‘Liberty finds no refuge in a jurisprudence of doubt.’ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), is very different. The need for stability and certainty presents no barrier.”⁶² The dissent's first move – even before it addresses the issue of homosexuality. It seeks to evoke the feeling of disapproval itself, both as a fundamental American emotion and as an instrument of judicial force: “Today's opinions in support of reversal do not bother to distinguish – or indeed, even bother to mention – the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it.…Today, however, the widespread opposition to Bowers, a decision resolving an issue as ‘intensely divisive’ as the issue in Roe, is offered as a reason in favor of overruling it.”⁶³

Politically, at first glance, this seems a counterintuitive parallel, because “widespread opposition” to Roe and “widespread opposition” to Bowers would seem to come from very different places and to represent very different, indeed diametrically opposed, social visions. Opposition to Bowers came from a belief in the right to privacy, which is the same belief that underlay Roe.⁶⁴ And yet the comparison of Bowers to Roe, as raised in the Lawrence dissent, makes considerable sense once we start to read that dissent as a case study in disapproval and animus as cumulative emotions. In his opinion in the 1992 case Planned Parenthood v. Casey (the case he references in Lawrence), Justice Scalia had expressed shock that widespread disapproval of Roe had not succeeded in toppling it. He wrote, “I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced – against overruling, no less – by the substantial and continuing public opposition the decision has generated.”⁶⁵ And then, “whether it would ‘subvert the Court's legitimacy’ or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.”⁶⁶ When Justice Scalia announced this reaction, he leaned on Bowers: “It is obvious to anyone applying ‘reasoned judgment’ that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U.S. 186 (1986)) has held are not entitled to constitutional protection – because, like abortion, they are forms of conduct that have long been criminalized in American society.”⁶⁷

Through these mentions of criminalization, it becomes clear that the issue in this dissent is not just the importance accorded to long histories of criminalization (the “ancient roots” argument offered in Bowers), but the storied tradition of translating conservative disapproval into conservative legislation – the tradition, that is, of making laws that enact animus and are rooted in animus. In Planned Parenthood v. Casey, Scalia argued explicitly that one of the nefarious results of Roe was its elimination of disapproval: “Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act.”⁶⁸ He does not say that it “created a vast new class of abortion consumers and abortion proponents” by eliminating the administrative prohibitions, or even by eliminating the translation of moral opprobrium into criminalization, but by eliminating moral opprobrium period. There is no space in that formula for a moral opprobrium that exists but does not demand to be manifested in law. These, it seems, are as inseparable in the dissent as disgust is from flinching. The discussion of Roe v. Wade in the Lawrence dissent, then, is not really about comparing one unpopular law to another, but about comparing one function of disapproval to another. It is an attempt to brandish animus to reclaim and redeploy it as a legal instrument: a brandishing that resonates because although Lawrence may be a lost cause, Roe is not.

Justice Scalia writes: “The problem is that Roe itself – which today's majority surely has no disposition to overrule – satisfies these conditions to at least the same degree as Bowers.”⁶⁹ And then, “What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State.”⁷⁰ Given the wording in Casey, this could be restated as “restored the regime that existed when moral opprobrium was law.” But the reference to “today's majority” does more than wax sentimental about the regime that came before Roe. Today's majority may well not be tomorrow's majority, and although an endeavor to recriminalize sodomy is not likely to come to the Supreme Court again, an endeavor to recriminalize abortion, or to render it inaccessible to most women, is very likely to do so. With respect to the idea that the reversal of Roe “would simply have restored the regime that existed for centuries before 1973,” we can recall Gary Morson's notion of sideshadowing and the dissent in Bowers that disapproved of the majority's reasoning while sideshadowing, envisioning, wishing for, a broader application of equal protections. In contrast, the difference between these two expressions of “would have” and “should have” – one an expression of rue and the other an intimation of retribution – can be brought down to narrative voice. The dissents that defend animus and disapproval are written by justices who share that disapproval, whereas the dissents that condemn animus, and claim that animus harms individuals, are for the most part claiming that harm on behalf of others, not, or not primarily, of themselves. But this difference in narrative voice, this difference in emotional investment, really is the entire story because the first-person concern causes and enables disapproval – which has both emotional and intellectual components – to morph into judgment, voice, and action.

Animus as Zero-Sum Game

To open the Lawrence dissent with a discussion of Roe is to make the case about disapproval, and what is more, about disapproval as punitive, about animus that grows each time it is thwarted. Animus casts equal protection – or rather to use less paradoxical wording, protection under the law – as a zero-sum good. Indeed, the idea of the zero-sum appears frequently in antigay discourse, perhaps most famously in the so-called Defense of Marriage Act, the very wording of which suggests that marriage is a less a social institution than a sort of finite pie. If some is given to homosexuals, less will remain for heterosexuals. The same notion of defense against encroachment and depletion appears in the Lawrence dissent: “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that ‘preserving the traditional institution of marriage’ is a legitimate state interest.”⁷¹ And, “The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage.”⁷² Besides the language of preservation and imposition, it should be pointed out that this is a very different sort of we than the we that Justice Blackmun articulated in the Bowers dissent, when he said, “We should be especially sensitive to the rights of those whose choices upset the majority.” Blackmun's was the we of the justices, the we of those whose discretion decides the law, who stand to cause harm with discriminatory legislation. But the we in the Lawrence dissent is at once broad and imaginary, covering not just the nine justices but also the entire population as it lives in the conservative political imagination – all the good people of the United States who want to protect the institution of marriage.

It soon becomes clear that there is indeed a zero-sum game at hand in Lawrence v. Texas; it is not about status or access to equal protection, though, but rather about animus and its reach. The discussion of Roe at the start of the dissent constitutes a transparent and almost compulsive return to animus, declaring a plan to reactivate animus on the soonest possible occasion. To the Romer majority, Justice Scalia had responded with an open defense of animus; and to the Lawrence decision, he responds at once with a reference, a reminder as it were, of a domain (reproductive rights) in which animus could still carry the day. And in her 2007 dissent to Gonzales, using wording that replicated that of the Romer ruling, Justice Ginsburg would indicate that animus had carried the day, criticizing the majority for its “hostility” to a woman's right to decide whether to continue her pregnancy. When we read these cases and dissents as episodes in a story of animus, it seems that animus thwarted in one instance comes out in another instance, and it is a matter of finding somewhere – some historically disenfranchised or excluded group on which – to place it. The Lawrence ruling implied that homosexuals as a group were becoming impervious to animus. Indeed, when Attorney General Eric Holder announced the White House's February 23, 2011, decision not to defend the ban on same-sex marriage, he said, “The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus that the Equal Protection Clause is designed to guard against.”⁷³ This open reference to animus is an important evolution from Bowers, which insisted that the case was about the legislative authority of the state and did not showcase in such unguarded terms the predominance of personal disapproval as law-making mechanism. And yet the raising of Roe v. Wade in the context of the Lawrence dissent implies that when malicious animus bounces off one historically disenfranchised target, it simply turns and heads for another, so completely, so inextricably, it seems, has the feeling of hostility and frustration become intertwined with the drive to legislate, and so completely has that combination come to pass for cultural formation and protection.

Conclusion

To return to the analogy that compares Supreme Court justice and subject to author and character, at stake in the dissents discussed here is the power of the author over the legal subject as character. The majority opinion and the dissent amount to dueling narrative voices; this has been said in discussions of law and literature and in discussions of the law as literature. The issue of animus as a force behind law's formation and as a fundamental component of its content raises the question not just of what sort of character one can be but of what right one has to be a character at all, whether merely pretending to the status of character (or protagonist) or subject under the law must be cast as a sort of fraud or imposture. Some people seem doomed to the status of minor character, not fully fleshed out in either the human sense or the legal sense, as Stephen Rich notes when he references laws that perpetuate powerlessness among certain classes. Their status has ancient roots, to use the words Justice White used in Bowers. What I have tried to demonstrate is that animus is part of those ancient roots. Animus becomes part of the historical durability of powerlessness, both because it is cumulative (malice tends to increase rather than diminish over time) and because in the case of actual criminals with actual victims, animus (we can remember Justice Scalia's references to murderers and animal torturers) does have a social utility. Animus becomes a fault line, at once tonal, philosophical, and existential, that separates conservative and liberal political ideologies. I said earlier that conservative dissents tend to cast themselves as majority opinions even as liberal majority opinions often resonate as dissents, precisely because the former are driven by a fantasy of authorship, a fantasy in which animus – as a sort of magical melting point of visceral reaction, will to control, and dedication to cultural formation – steps into the narrative to unwrite the very lives of its so-called minor characters. Animus, sometimes cast as the milder, cooler, and more acceptable disapproval, is not merely a form of reasoning among others, nor is it an emotion that stands in a neutral relation to legal judgment, but a very volatile and dangerous combination of malice, exclusiveness, and legal authority.