Earlier this month, the U.S. Court of Appeals for the 10th Circuit in Denver defeated the same-sex marriage ban in the state of Oklahoma, according to The New York Times.
Despite the ruling, a concurrence was filed by Judge Jerome A. Holmes that rejected the thinking that will be used to appeal the case to Justice Anthony M. Kennedy of the Supreme Court. His vote will be the crucial vote when the question of a constitutional right to same-sex marriage is brought in front of the nation’s highest court.
Judge Holmes wrote that animus did not play a role in the gay marriage ban, which was adopted by the voters in Oklahoma back in 2004. He also said that most of the recent same-sex marriage decisions had the same opinion, with just four finding the bans were caused by animus.
Holmes said that animus can be fatal, saying, “What happens when the clues are all gathered and animus is detected? The answer is simple: The law falls.”
When the law was passed in Oklahoma, Republican state Senator James Williamson said, “It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage.”
A lawyer from Lambda Legal, Susan Sommer, said, “The judge wanted to be clear that he was not suggesting that a majority of the voters of the state are wild-eyed bigots. We don’t need to find extreme malicious intent. What can be involved are stereotypes, beliefs, negative attitudes and fear of what remains unknown.”
The Supreme Court has been divided in the past on what animus actually means in the same-sex marriage fight.
Last year, in the case of the United States v. Windsor, Chief Justice John G. Roberts Jr. said that animus needs a “sinister motive and bigotry.” Justice Antonin Scalia said that animus is “unhinged members of a wild-eyed lynch mob with hateful hearts.”
In his opinion from the Windsor case, Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”
Should Judge Holmes’ conclusion that animus played no role in the ban on same-sex marriage in Oklahoma, it could block the path of those in favor of same-sex rights at the Supreme Court level. The conclusion from Holmes must first be accepted by the Supreme Court.