Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus focused jurisprudence for lifting the discrimination against the expression of certain sexual identities. If the law is shifting from essentialism while veering closer to marriage equality, then will these parallel journeys end by reaching a constructivist approach to sexual identity? Pure constructivism poses thorny risks for attempts to include orientation as a suspect classification for heightened scrutiny. As an example, the immutability factor is likely to resist constructivist ideas that sexual identity is a choice or a construct. Windsor’s use of animus-focused jurisprudence hints at a solution that allows the abandoning of essentialism to reach a middle ground because animus-focused jurisprudence moves the examination away from whether a trait is protectable under equal protection toward the animus that created the discrimination within a law itself. This Article explores Windsor’s animus-focused jurisprudence as the convergence of both marriage equality and incrementalism, and posits normative reasons for sustaining this jurisprudence stepping forward.
Jeremiah A. Ho, Weather Permitting: Incrementalism, Animus, and the Art of Forecasting Marriage Equality After U.S. v. Windsor, 62 Cleveland State L. Rev. 1 (2014).