The Battle for Animus in Historical Context
There is a battle underway for the soul of the doctrine of unconstitutional animus, and the outcome of this battle will matter for the future of equal protection jurisprudence as a whole. (You can read the introduction to this series of posts here.)
In brief, there are at least two, supportable understandings of the doctrine of animus: one sees animus as a form of impermissible subjective mindset, something akin to bigotry or ill-will, while another sees animus as a form of impermissible objective function, namely, disadvantaging a class of persons on an arbitrary basis. The former understanding focuses (improperly, in my view) on the intent of the discriminator; the latter focuses on the effects of the discrimination.
As I will explain in greater detail in subsequent posts, adoption of the narrow, intent-focused view of animus will limit the availability of the doctrine to force careful consideration of the evolving dynamics of discrimination in our society.
What is interesting is that there appears to be a concerted effort on the part of jurists and scholars to frame animus in this more narrow way. Indeed, proponents of this view do not even acknowledge that there are other ways of thinking about animus; they treat the equation of animus with bigotry as uncontested fact.
To me, this is reminiscent of a doctrinal battle fought decades earlier, also in the area of equal protection jurisprudence: the battle over recognizing a third, so-called “intermediate” level of scrutiny.
In her excellent draft article, Lessons from Sex and Illegitimacy, Katie Eyer describes a critical turning point in the Court’s equal protection jurisprudence, and the forces that influenced the ultimate doctrinal outcome. Specifically, in the 1970s, there was uncertainty over how to treat discrimination on the basis of sex. Did such discrimination even implicate the Equal Protection Clause, which was initially and primarily enacted to combat race subordination? If yes, should such claims be treated with equivalent suspicion?
By the 1970s, it was well established that courts would subject discrimination on the basis of race to strict scrutiny–an exceedingly demanding type of review that places a heavy burden of justification on the government, which the government is rarely able to meet. But other forms of discrimination would receive only rational basis review–an exceedingly deferential type of review that places the burden on the plaintiff to prove the challenged discrimination verges on lunacy, which the plaintiff is rarely able to meet.
But in the 1970s, the Court seemed to abandon the deferential nature of rational basis review, requiring firmer justifications in instances of sex discrimination, discrimination against children born out of wedlock, and a handful of other cases.
As Eyer describes, there were two possible outcomes at this point. Either the Court would embrace a more rigorous and meaningful form of rational basis review in all cases of discrimination, or the heightened scrutiny that had been applied in the sex and illegitimacy cases would be cabined to those two circumstances. Needless to say, the former solution would have much broader and more transformative implications for equal protection jurisprudence as a whole.
But Eyer documents how Justice Rehnquist–no fan of the tiers of scrutiny in general, much less multiplication of those tiers–ultimately pushed for designating sex and illegitimacy to be recognized as “quasi-suspect” classes that would be subject to “intermediate scrutiny.” This new standard was conceptualized as something less than strict scrutiny but more than rational basis review, thereby preserving deferential rational basis review as the standard for the vast majority of cases.
In other words, this move to broaden heightened judicial scrutiny for a small subset of cases had the effect of preserving deferential, non-reason-forcing, non-justice-producing rational basis review in the remainder of cases.
It is possible that we are witnessing a similar constitutional moment with regard to the doctrine of animus. It is patently obvious that animus has, at the moment, multiple definitions and multiple forms. And yet certain jurists and scholars seem determined to reduce it down to an accusation of bigotry, such that those who invoke the doctrine are seen as denigrating their opponents. This inevitably raises the political cost of relying on animus. Further, demanding proof of subjective, malicious intent raises the costs (and diminishes the possibility) of proving animus as well.
If animus is understood broadly, it could transform equal protection jurisprudence into something more broadly protective of new types of marginalized groups and against new types of discrimination. If it is understood narrowly, this transformative potential will be subverted.
Next: “Why Equal Protection No Longer Protects”