Introduction and Summary of Argument

In its decision below, the Sixth Circuit acknowledged the “lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens.” DeBoer v. Snyder, 772 F.3d 388, 413 (6th Cir. 2014). In doing so, however, the Court refused to connect that history to “the institution of marriage.” Id. The history of “prejudice against gays,” the Court explained, did not lead “to the traditional definition of marriage.” Id. Thus, “[t]he usual leap from history of discrimination to intensification of judicial review does not work.” Id.

Whatever the logic of the lower court’s decision, it missed the point. Without question, there is a longstanding and well-documented history of animus against LGBT Americans, and this history has a direct and real connection to the state marriage bans now before this Court. See, e.g., Br. of the Human Rights Campaign and 207,551 Americans as Amici Curiae Supporting Petitioners 16-21 (examining the historical and political context behind the state marriage bans).

But the historical animus against LGBT Americans is much deeper than just one set of laws. For decades, this animus was one of the basic assumptions of American life. It was so persistent, so prevalent, and so instrumental to the way that we structured our institutions, treated our fellow citizens, and organized our lives that, in retrospect, it is often overlooked.

It is the mission of the MSDC to uncover this often overlooked history of animus. The MSDC has sought to locate and make public the long forgotten and often hidden documents from federal and state governments, presidential libraries, and other private and public institutions, that reveal animus against LGBT Americans. George Orwell is credited with having said, “the most effective way to destroy people is to deny and obliterate their own understanding of their history.” The purpose of the MSDC is to ensure that this history of animus is not forgotten.

And that history is very relevant to the current cases before this Court. Original source materials obtained and recently released by the MSDC reveal the backdrop of animus in front of which the states enacted the bans now at issue.2 For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time—from concerns about national security to code words, such as “suitability”—but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality.

Animus, therefore, was a culture. And with that culture came a language. For decades,  government officials referred to homosexuality in official, often highly confidential or privileged communications, as “unnatural,” “uniquely nasty,” “immoral,” “deviant,” “pervert[ed],” and an “abomination.” Even the FBI had a term for the program that it designed to rid the government of homosexuals—the “Sex Deviate Program.” Once it attached, whether based in fact or mere speculation, the label of homosexuality remained forever fixed. As one senior executive official wrote, “once a homo, always a homo.” And, as one state legislature put it, what homosexuals wanted was “recognition.” And “recognition” was something to fear.

To be sure, these documents do not mention marriage or the bans now at issue. But, in every way, that is precisely what they are about. To understand whether a law embodies constitutionally impermissible animus, this Court often looks to “circumstantial evidence” such as “historical background.” Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265 (1977). The historical background demonstrated by these original source materials reveals a culture of animus against LGBT Americans, justifications for excluding them from the privileges given to all other Americans, and a revulsion to any form of intimacy between individuals of the same sex. The voices of the government officials in these important documents, and the stories of the victims of these purges, show why government actions grounded in animus cannot stand.

Next: Argument

2 MSDC has requested to lodge the materials, cited herein, with the Clerk pursuant to Supreme Court Rule 32.3. The materials are also available online throughout this online briefing.

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