Bishop v. Smith: Judge Holmes, Getting Animus Right, and Wrong


Animus can be considered the sleeper agent of the Court’s equal protection jurisprudence: it rarely makes an appearance—but when it does, it swiftly and effectively accomplishes its mission.

Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L. Rev. 887, 892 (2012).

I have long believed that the doctrine of unconstitutional animus has much to offer the law of equal protection. While elusive, the doctrine is powerful from both a practical and a theoretical perspective.

First, invoking the doctrine of animus allows courts to avoid the difficult and possibly defunct doctrines of suspect classification analysis and heightened scrutiny.  Second, a showing of animus is virtually the only way an equal protection plaintiff can prevail under deferential rational basis review, which is the default standard applied by the courts in the majority of cases.  Third, the doctrine of animus (properly applied) stands alone in its ability to enforce the strong anti-caste mandate of the Equal Protection Clause.  Finally, unlike suspect classification analysis, which is fundamentally backward-looking, the doctrine of animus looks forward in an effort to patrol for new and evolving biases.

And yet many courts have glossed over the question of animus, in part because of the lack of clear guidance from the Supreme Court on how exactly the doctrine works.

Fortunately, Judge Holmes of the Tenth Circuit determined to engage the issue in a thoughtful analysis in his concurring opinion in Bishop v. Smith, the most recent decision from the Tenth Circuit on the issue of marriage equality.  In the majority opinion, the panel applied the reasoning from its earlier decision in Kitchen v. Herbert to conclude that: (1) bans against same-sex marriage implicate the established fundamental right to marriage; (2) because such laws implicate a fundamental right, they will be subject to strict judicial scrutiny; and (3) the state’s proffered justifications for the laws fail that most demanding level of review.

Judge Holmes wrote separately to expound upon his views of the doctrine of animus.  In the interests of full disclosure, I note that Judge Holmes cited to some of my work, which may make me predisposed to admire his opinion.

However, as discussed below, there are aspects of Judge Holmes’ analysis with which I must disagree.

Three Framing Questions

Writing in 2012, prior to the Court’s decision in United States v. Windsor, I identified three persistent, unanswered questions surrounding the doctrine of animus.

There are three open questions at this point in the Supreme Court’s animus jurisprudence: (1) How does the Court define unconstitutional animus? (2) What does the Court accept as evidence of animus? (3) What doctrinal significance does the Court attach to a finding of animus?

Unconstitutional Animus at 924.

After the Court’s decision in Windsor, I noted that these same questions persisted, unanswered, although they were the subject of some debate between the majority and dissenting opinions in that case. See Susannah W. Pollvogt, Windsor, Animus, and the Future of Marriage Equality, 113 Columbia L. Rev. Sidebar 204, 205 (2013).

In his concurring opinion, Judge Holmes similarly identified three primary features of the doctrine of animus that required examination:

To understand why animus doctrine is not dispositive in this appeal, one must understand three basic features of the doctrine: (1) what is animus; (2) how is it detected; and (3) what does a court do once it is found.

Bishop v. Smith, No. 14-5003 & 14-5006, slip op. at 1 (Holmes, J., concurring).

While I largely agree with Judge Holmes’ take on points (1) and (3), I respectfully disagree regarding point (2), namely, the question of what evidence is required for a court to discern the presence of animus.

(1) How is Animus Properly Defined?

I agree with Judge Holmes on an important point: that animus is not properly equated solely with “hostility” or “a desire to harm.”  Rather, the totality of the Court’s animus jurisprudence reveals that its presence may be premised on much milder mindsets including fear, private bias, moral disapproval, or mere negative attitudes. See Unconstitutional Animus at 925 (“[T]here are many forms of subjective intent other than “spite” that fall into the category of unconstitutional animus.”). It is true that the Court has on occasion referred to evidence of a “bare . . . desire to harm a politically unpopular group,” but this is just one circumstance under which the presence of animus may be found.

Similarly, Judge Holmes noted that, while animus is sometimes marked by hostility, “[o]n the weaker end of the continuum, a legislative motive may be to simply exclude a particular group from one’s community for no reason other than an ‘irrational prejudice’ harbored against that group.”  Bishop at 8 (Holmes, J., concurring) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985)).

However, in addition to defining animus with respect to the types of mindsets with which it is associated, there is a definitional question as to whether animus is in fact properly understood as a type of impermissible subjective mindset (i.e., animus is private bias) or an impermissible objective function (i.e., animus is the function of enforcing private bias).  See Unconstitutional Animus at 924; see also Windsor, Animus, and the Future of Marriage Equality at 209.

Significantly, Judge Holmes contended that “the hallmark of animus jurisprudence is its focus on actual legislative motive,” a characterization that (1) limits animus to an impermissible subjective mindset (i.e., motive) and (2) requires that this mindset be held by state actors (i.e., the legislature).  Bishop at 7 (Holmes, J., concurring).  On this point I must strongly disagree.

In particular, this characterization is directly contradicted by the Supreme Court’s decisions in Palmore v. Sidoti and Cleburne.  In brief, in both cases, it was not state actors who expressed private biases toward the targeted group.  Rather, state actors were merely responding to private biases held by members of the relevant community.

Thus, if one is to account for the totality of the Court’s relevant jurisprudence, animus is seen not as an impermissible subjective mindset held by state actors, but the impermissible objective function of reflecting and enforcing private biases through the public laws.

(2) How Should Courts Discern the Presence of Animus?

It is on this point that my departure from Judge Holmes’ analysis is greatest.

Without rehashing the entirety of my original analysis of the Supreme Court’s animus canon, it seems beyond dispute that the Court detects the presence of animus in at least two ways: (1) through direct evidence of private bias surrounding the enactment of the law, and/or (2) through a structural analysis of the law.

This latter structural analysis, in turn, has taken at least two forms.  In the Court’s early cases, the structural analysis was quite precise: the state was required to demonstrate some affirmative connection between the trait defining the targeted group and the specific interests being regulated by the challenged law.  See Unconstitutional Animus at 902-03, 910-11.  In the absence of such a connection, the law was found to be based in impermissible animus.

Typically, the Court engaged in both analyses, appearing to treat direct evidence of bias as a trigger for the structural analysis, which can be understood as a heightened form of rational basis review.  This direct evidence model prevailed in the Court’s early animus cases, namely Moreno v. Department of Agriculture and Cleburne. (Direct evidence of private bias was also present in Palmore, although heightened rational basis review had no role to play there because it was already a strict scrutiny case.)

But the Court eschewed this established methodology in its 1996 decision in Romer, instead engaging in a vague analysis that focused on the challenged law’s impact.  As I have argued elsewhere, I believe that Romer departed from this established path because of the unique historical moment in which it was decided, and that Romer should not be considered a leading case on the doctrine of animus for that reason. See Susannah W. Pollvogt, Forgetting Romer, 65 Stanford L. Rev. Online 86 (2013).

But Judge Holmes minimized the significance of direct evidence of private bias, stating merely that “[i]t bears mention that the Supreme Court has periodically consulted legislative history materials in its search for unconstitutional animus.”  Bishop at 10, n.6 (Holmes, J., concurring).  But in fact, reference to the legislative history was the standard approach prior to Romer, and Windsor arguably returned to that approach by referencing the legislative history behind DOMA as supporting a finding of animus.  Contrary to Judge Holmes’ reading, it is Romer that is the anomaly in declining to look at the circumstances surrounding enactment of a law.

Nonetheless, Judge Holmes instead preferred a structural analysis that detected animus in:

(1) laws that impose wide-ranging and novel deprivations upon the disfavored group; and (2) laws that stray from the historical territory of the lawmaking sovereign just to eliminate privileges that a group would otherwise receive.

Bishop at 9-10 (Holmes, J., concurring).

There are many doctrinal and theoretical problems implicit in this approach, but this is a larger discussion for a later time.  For now, I will simply observe that this approach seems unnecessarily vague and malleable in the face of a substantially more precise test articulated in the earlier animus cases—namely, per Cleburne , whether the state can demonstrate an affirmative connection between the trait defining the targeted group and the interests being regulated by the challenged law.

Further, the standard articulated by Judge Holmes relies heavily on reference to contemporary custom and understandings of fairness. Like the “discrimination of an unusual character” standard employed by Justice Kennedy, such an approach is ineffective at exposing reliance on contemporary prejudices:

[The] “discrimination of an unusual character” standard repeats a critical mistake that has compromised the Court’s equal protection jurisprudence since its inception. In short, it makes identification of invidious discrimination dependent on common-sense and unarticulated notions of what is and is not “unusual” with respect to discrimination. It incorporates and relies upon contemporary consensus regarding discrimination and the relative entitlement of various social groups. In 1896, racial segregation in train cars was likely not seen as “unusual”; similarly, in 1986, criminalizing homosexual sodomy likely did not strike most as “unusual” either.

Susannah W. Pollvogt, United States v. Windsor and the Crisis in Equal Protection Jurisprudence, ___ Hofstra L. Rev. ___, ___ (forthcoming 2014).

(3) What Are the Doctrinal Consequences of a Finding of Animus?

Judge Holmes also addressed the perplexing question of the doctrinal consequences of a finding of animus, which can also be thought of as the relationship between animus and rational basis review.

I will focus on the two most viable theories in this category. The first is that once animus is detected, it eliminates the need to conduct rational basis review, or any further inquiry whatsoever. Under this theory, “animus acts as a doctrinal silver bullet.” Unconstitutional Animus at 930. Prior to Windsor, this theory was supported by the reasoning in Romer (where the Court declined to conduct anything resembling rational basis review) and by the outcomes in Moreno and Cleburne. Stated briefly, the laws challenged in Moreno and Cleburne would clearly survive traditional rational basis review; accordingly, from one perspective, it must have been the presence of animus that did these laws in.

This is the theory that Judge Holmes explicitly embraced—that a finding of animus acts as a doctrinal “silver bullet,” invalidating the challenged law regardless of any seemingly legitimate justifications. Bishop at 16 (Holmes, J., concurring) (“[O]nce animus is detected, the inquiry is over: the law is unconstitutional.”).

The second theory (and the one that I increasingly believe is more supportable) is that a finding of animus triggers a heightened form of rational basis review. The primary features of this form of review are that it (1) shifts the burden of proof from the plaintiff to the government; and (2) requires the government to show that the trait that defines the classification is affirmatively related to the purported governmental interest in regulating the right or benefit at issue. Under traditional rational basis review, the fact that a law is over- or under-inclusive is irrelevant, but under heightened rational basis review, it may signal the death knell. This form of review is aptly demonstrated in both the Moreno and Cleburne decisions (and described at greater length in this amicus brief at 20-26).

And although Judge Holmes ultimately seized on the “silver bullet” theory of animus, he also acknowledged that the presence of animus alters the nature of rational basis review:

Since the animus cases dealt with non-suspect groups, and yet did not invoke the rational-basis test in its classic form, the jurisprudence does not fit easily into the tiers of scrutiny that attach to most equal-protection claims.

Bishop at 6 (Holmes, J., concurring).

What is important to note is this: there is a substantial trade-off between these two conception of the consequences of finding animus. If animus is a silver bullet, this would require, in the words of Justice Scalia, “the most extraordinary evidence” to justify its use in striking down the law. See Windsor, 133 S. Ct. at 2707 (Scalia, J., dissenting).

If, instead, the presence of animus provokes a more searching form of rational basis review, then the doctrine of animus would become a flexible tool for closely examining and identifying impermissible functions of the public laws.

Three Questions Going Forward

At the end of the day, the doctrine of animus presents a great degree of uncertainty, and also great promise. But it remains to be seen whether that promise will be realized when the Supreme Court ultimately confronts the three open questions regarding the doctrine.

It is a great benefit to the law of equal protection that Judge Holmes has elevated the dialogue to a more explicit level, squarely posing the questions that need to be answered.


One response to “Bishop v. Smith: Judge Holmes, Getting Animus Right, and Wrong

  1. Pingback: Animus in the News | Pollvogtarian·

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