E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
While the constitutional concept of animus was born in a
case about discrimination against hippies, and was significantly elaborated in
a case about persons with cognitive disabilities, since the Court’s 1996
decision in Romer v. Evans, animus
has come to be strongly associated with protecting the rights of sexual
minorities. (See Bill Araiza’s post in this symposium: “[A]nimus has become a central organizing
principle of the Court’s sexual orientation discrimination jurisprudence.” And Russell Robinson’s: “The modern Court has refused to extend
those precedents [Moreno and Cleburne] in every context except gay
rights.”)
This reliance on animus in the sexual orientation cases may
represent, as Neil Siegel has used the term in other contexts, a “way station” to application of traditional equal protection doctrines (suspect
classification analysis and explicit application of heightened scrutiny) to
sexual minorities. Alternatively, it may
represent a non-transitory commitment to approaching the sexual orientation
cases in this manner.
In either case, now that the Court has tabled the issue of
same-sex marriage—perhaps temporarily, perhaps permanently—the question becomes
whether the doctrine of animus has significance outside of the same-sex
marriage context.
It would seem so. As Justin Marceau described in his post to this symposium, he and his colleagues have
been able to successfully raise the issue of animus in the context of
protecting a relatively novel politically unpopular group—animal rights
activists. Other advocates have
successfully argued the presence of animus against immigrants
as a basis for an equal protection claim.
This suggests that animus may have traction with the courts
outside the context of same-sex marriage and discrimination on the basis of
sexual orientation. I for one am
particularly interested in whether the doctrine of animus might be invoked to
protect the rights of felons, who are routinely targeted by laws attaching
collateral consequences to their status as ex-offenders. This inquiry is particularly salient in light
of Michelle Alexander’s
work on our creation of a vast, disenfranchised criminal class.
***
The question of whether the doctrine of animus can help new politically unpopular groups
necessarily requires us to ask whether the doctrine is broad enough, flexible
enough, and vigorous to protect the established
suspect and quasi-suspect classes.
Specifically, as Russell Robinson contended in his contribution to this symposium as well as his forthcomingarticle, the Court seems able and willing to recognize animus against
sexual minorities, but not against racial minorities:
The Supreme Court’s equal protection jurisprudence places
people of color and LGBT people on segregated doctrinal paths heading in
divergent directions. While equality is
expanding for LGBT people, it is evaporating for people of color.
Robinson’s critique exposes the uneasy
connection between the increased willingness to confess prejudice against
sexual minorities and the increasingly urgent claim that racism and sexism are
“over”:
[The animus doctrine] reflects one
man’s intuition that people of color and women have obtained enough justice in
the courts, and the focus of modern equal protection doctrine should be gay
rights cases, which are typically fronted by white, affluent plaintiffs, such
as Edith Windsor, and so-called “reverse discrimination” claims brought by
whites in cases like Ricci and Parents Involved.
Is animus a doctrine that is in play only with respect to prejudices
we are comfortable confessing?
The unsupported conclusion that racism is “over”—a theme
central to reasoning in the Court’s recent decisions in Fisher, Shelby County,
and Schuette—is one of the most
important issues of our time, and is intertwined with the question of whether
animus is a doctrine of universal application, or a contrivance limited in
effect to those groups for which members of the Court feel empathy.
***
Animus will go on, and there are as many pressing questions
about it as ever. The participants in
this symposium have addressed several of these.
Neil Siegel tackled the question of whether we need the concept of animus when
we have a clear—and perhaps more respectful—rule about the impropriety of
relying on moral opposition in enacting discriminatory laws.
This provokes a necessary and continued discussion of
private versus public values, as the next wave of litigation deals with
religious exemptions to honoring the rights of same-sex couples.
Dale Carpenter offered an intriguing model to guide courts in finding the
presence of animus. An articulated
evidentiary standard for animus is, as Dale emphasizes, a necessary
prerequisite for establishing that courts are competent to invoke this
controversial doctrine. Particularly
significant is Dale’s well-supported claim that evidence of animus can be found
in examining the effects of a discriminatory law. Animus has been criticized as a doctrine
overly concerned with illicit motives, but it may in fact revive a concern with
the impact of discrimination upon its victims.
Another web of uncertainty is found in the relationship
between the doctrine of animus, Congress’ power to enforce equal protection
principles, and the Court’s aggressive patrolling of that power. Bill Araiza detailed this conundrum, focusing on the difficulty of adapting the
new, animus-based equal protection to the congruence and proportionality
inquiry:
To the
extent animus is a label that can be affixed only case-by-case – i.e.,
to the extent it describes a particular government action, rather than an
entire species of actions – it fails to provide a broadly-applicable principle,
akin to a suspect class determination, informing the congruence and
proportionality inquiry.
If Congress tries to flex its
enforcement power, will the doctrine of animus enhance or restrict that effort?
***
My hope is that animus will continue to be invoked and
explored as a way of addressing both new and old prejudices. In the best case scenario, the doctrine of
animus could be a way of more honestly recognizing the persistent human impulse
to create castes in society, and honoring our noble, democratic commitment to
resist and correct that impulse.
Susannah Pollvogt is an Associate Professor at Washburn
University School of Law. She can be
reached at susannah.pollvogt at
washburn.edu.