The following is a brief distillation of ideas first explored in my article, Unconstitutional Animus, 81 Fordham L. Rev. 888 (2012), and subsequent papers (links below).
The doctrine of unconstitutional animus has become a hot topic lately–understandably, because it was the centerpiece of the Supreme Court’s decision striking down the Defense of Marriage Act in United States v. Windsor, and is now becoming the focus of challenges to state-law marriage bans.
But what exactly is unconstitutional animus?
This is a fair question, because, although the Court invoked animus in Windsor, it did so in a way that was a bit opaque and perhaps self-contradictory.
Let’s start at the beginning. The first case to “officially” invoke the concept of animus was the Court’s 1973 decision in United States Department of Agriculture v. Moreno, where the Court described animus as “a bare congressional desire to harm a politically unpopular group.” The Court concluded that such a “bare . . . desire to harm” was not a legitimate purpose for the public laws. There is a lot more to be said about the Moreno decision and how it functioned doctrinally, but this notion of animus as a “desire to harm” is a good starting point for unpacking the concept.
From there, the definition of animus broadened to include the concept of private bias (Palmore v. Sidiotti) as well as fear and stereotype (City of Cleburne v. Cleburne Living Center). And while the Court’s 1996 decision in Romer v. Evans was arguably the least clear and least methodically articulated of the animus cases to date, it became the key text in the animus canon from that point forward (see in particular Judge Reinhardt’s opinion in Perry v. Brown, carefully crafted to follow Romer in style and substance).
But, as of 2012, with the issue of same-sex marriage approaching ever closer to the Supreme Court’s docket, there remained three critical unanswered questions regarding the doctrine of animus:
(1) How did the Court define animus? Was animus merely, as Justice Scalia contended, a “fit of spite”? An extreme form of impermissible subjective mindset akin to bigotry? Or was it something milder, like private bias? More intriguing: Should animus instead properly be thought of as a form of impermissible objective function, judged by its effects rather than by the intent of the state actor? See Unconstitutional Animus at 924.
(2) A necessary corollary to this first question: What would the Court accept as evidence of animus? Is a stray, hostile comment in the legislative record sufficient? Must there be evidence that all the proponents of a particular piece of legislation harbored ill-will in their hearts, or only some portion? Would a less provocative and more workable understanding of animus look for evidence solely in the structure and impact of the law, rather than trying to lift the veil on subjective intent? See Unconstitutional Animus at 926.
(3) Finally, and perhaps most importantly: How did the Court understand the relationship between animus and rational basis review? One view sees animus as a trigger for so-called “heightened” rational basis review. Another sees animus as just one example of an illegitimate governmental interest, but not fatal to a law per se. A third view (and arguably the view implemented by Justice Kennedy in Windsor) sees animus as a silver bullet–the presence of animus defeats the law and no purported legitimate state interest can revive it. See Unconstitutional Animus at 929.
These questions were unanswered before Windsor, and remain unanswered after Windsor. Indeed, these three questions were the precise subject of heated–if oddly unacknowledged–debate between the majority and dissenting opinions in the case.
The lack of resolution on these key points has led to manifest confusion among the lower courts (indeed, the federal district court in Utah confessed to needing more guidance on the doctrine before it could implement it) and litigants. It is difficult to overstate what is at stake with development of this doctrine. A vigorous articulation of unconstitutional animus could represent a clear path out of the Court’s tortured tiers-of-scrutiny framework. It could provide meaningful equal protection review to groups that have not been–and likely never will be–recognized as suspect or quasi-suspect classes. It could allow the courts to identify prejudices as they evolve, rather then only after they have been recognized as harmful and unfair. It could re-orient equal protection jurisprudence to a focus on effects rather than intent, and in this way begin to resolve the impasse over affirmative action.
Or the doctrine of animus could be reduced to another form of a required showing of discriminatory intent–nearly impossible to prove and insensitive to the dynamics of contemporary discrimination.
One way or another, the true meaning of unconstitutional animus will only emerge if the Supreme Court–or perhaps a brash lower court–tackles head-on the lingering questions about the nature and function of the doctrine.