There is a battle being waged for the soul of unconstitutional animus, and, along with it, the soul of equal protection jurisprudence itself.
“Surely this is hyperbole!” you protest. But I do not think so. My hope is to convince you that there is, in fact, a great deal at stake for the future of civil rights and constitutional equality in this country, depending on how the Supreme Court interprets and applies the doctrine of animus over the next few years.
To accomplish this task, I will be posting an analysis in five parts. Part I sets the battle over unconstitutional animus in a historical context, with a comparison to the doctrinal battle over intermediate scrutiny, compellingly described by Katie Eyer in her important forthcoming article, Lessons from Sex and Illegitimacy. In short, we should be wary of scholars and jurists attempting to cabin the doctrine of unconstitutional animus in an effort to circumscribe its equality-forcing potential.
To understand what is at stake in this battle, Part II will revisit–to borrow Reva Siegel’s language–“Why Equal Protection No Longer Protects.” Specifically, it will catalog the shortcomings in contemporary equal protection jurisprudence that prevent the Court from engaging in critical, principled analysis of claims brought under the Equal Protection Clause.
This examination in Part II will set the stage for the critique set forth in Part III, to the effect that contemporary equal protection doctrines ask the wrong questions and scrutinize the wrong actors. Specifically, equal protection jurisprudence fixates obsessively on the intent of the perpetrator of discrimination to the exclusion of examining the mechanics and effects of discrimination.
The above observation is not new. What is new is examining this critique from the perspective of what is happening right now, in the Supreme Court and lower courts, with the doctrine of unconstitutional animus. In particular, several scholars and jurists are aggressively cabining the concept into a morally and doctrinally weak form, thereby undermining its transformative potential. In short, they are seeking to reduce animus into yet another means of focusing on the intent of the discriminator rather than the systemic effects of discrimination. Part IV will describe this phenomenon.
Finally, Part V will advance my argument, first articulated in my article Unconstitutional Animus, for a more vigorous understanding of the doctrine that re-animates the core normative principle of the Equal Protection Clause. Because Unconstitutional Animus preceded the Court’s decision in United States v. Windsor, I will revisit the article’s contentions from that vantage point.
NEXT: Part 1 – The Battle for Animus in Historical Context