an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On the one hand, it is an
important constitutional concept that has proven critical to judicial
recognition of the rights of sexual minorities.
On the other hand, it seems that no one really knows what animus is.
One might expect that,
after the highest court in the nation has relied on a doctrine (animus) in an
important and high profile decision (Windsor),
there would be a modicum of doctrinal consolidation in the wake of that
decision. But this has not been the case.
Instead, the lower courts
have openly expressed confusion about the meaning and function of animus, and
advocates have continued to pursue other lines of argument in the pending state-level
same-sex marriage cases, reluctant to lash their fates to the unsteady mast of Windsor.
In 2012, before the Supreme
Court’s decision in Windsor, I identified
three unanswered questions plaguing the doctrine of animus:
(1) How does the Court define animus? As malice or “desire to harm”? Or something milder, like bias or moral
disapproval? Is animus even properly
considered as an impermissible subjective mindset, or is it instead an impermissible
(2) What does the Court accept as evidence of
animus? Blatant statements of bias
surrounding the adoption of a law obviously play a role, but is such evidence
necessary? And, whether or not it is
necessary, is such evidence standing alone sufficient?
(3) What doctrinal consequences flow from a
finding of animus? Is animus a “silver
bullet,” defeating a law regardless of whether the government offers other,
superficially legitimate justifications?
Or is animus simply one illegitimate state interest, such that a law can
be saved by other rationales? Finally, is
it possible that animus is the trigger of that most chimeric level of scrutiny,
“heightened rational basis review”?
When the Supreme Court
granted certiorari in Windsor and Perry, I thought—naively, to be
sure—that the Court would either provide guidance on these questions or avoid
the doctrine of animus altogether.
Instead, it did neither.
Justice Kennedy, in
authoring the majority opinion in Windsor,
relied on the doctrine of animus, but without defining its contours. Indeed, the dissenting opinions attacked the
majority on the basis of the three questions identified above. Regarding the definition of animus, Chief
Justice Roberts contended that invoking the doctrine of animus was tantamount
to labeling one’s opponents hate-filled bigots.
Regarding evidence of animus, Justice Scalia found stray comments in the
legislative record insufficient to support this divisive charge. Regarding the consequences of finding animus,
both Roberts and Scalia pointed to precedent establishing that other rational
bases could save a law despite a finding of impermissible motive.
While Kennedy may not be
in the habit of engaging dissenting opinions, the dissents in Windsor simply highlighted a larger concern: the persistent ambiguity
surrounding the doctrine of animus—something Kennedy could have chosen to
address. But he apparently did not see the
need to engage these controversies head-on—at least not in the context of
Thus, all the questions
about animus that existed before Windsorremain
open after Windsor. Indeed, these three unresolved issues were
explicitly named by Judge Holmes of the Tenth Circuit, concurring in Bishop v.
Smith. And another
federal court recognized that animus was an issue in the state-level
same-sex marriage cases, but declined to engage the question because “the
Supreme Court has not yet delineated the contours of such an approach.”
Accordingly, part of the
purpose of this symposium is to delineate the contours of the animus
“approach,” while at the same time critiquing the doctrine and questioning
whether it is even necessary.
I have views on the
correct answer to all three of the questions posed above, but for this symposium,
I want to focus on the third—the consequences of finding animus. Specifically, I want to discuss the
relationship between animus and rational basis review.
I have come around to the
view that the “best” understanding of this relationship is that, where there is
some evidence that animus is afoot,
the Court applies so-called “heightened rational basis review.” But beyond simply referring to it as
“heightened,” we can identify specific features of this level of scrutiny.
First, the core substance
of the two prongs of the test remains the same. The discriminatory law must
serve some legitimate state interest and the trait that defines that
classification must be rationally related to that interest. In its traditional form, this test is
notoriously easy for a governmental defendant to meet.
But it is not necessarily
the substance of the standard that makes rational basis review so deadly to
equal protection plaintiffs. Rather, it
is the burden of proof. Under both forms
of heightened scrutiny, the burden is on the state to offer evidence meeting
the standard. Conversely, under
traditional rational basis review, the burden is placed on the plaintiff to
prove a negative—the absence of any conceivable legitimate state interest or
rational relationship. The state need
not offer any evidence in support of the law whatsoever. Worse yet, as suggested by this formulation,
the Court is free to conceive of justifications for the law after the fact,
without any notice to the plaintiff or any opportunity for the plaintiff to
“disprove” these judicial imaginings.
basis review is an abomination; it is a standard-less standard that amplifies
rather than constrains judicial discretion, encouraging appellate judges to
engage in imaginary fact-finding and naked policy-making. Lest we forget, traditional rational basis
review was the standard applied in Plessy
v. Ferguson, and it remains dangerous for the same reasons it was dangerous
in that case. Traditional rational basis
review provides no resistance to contemporary and evolving prejudices. Quite the contrary—it encourages dressing up
of such prejudices as reasoning and enshrines them in precedent.
We need an antidote to
traditional rational basis review, and the doctrine of animus is that
antidote. Specifically, what we see the
Court doing in the animus cases is shifting the burden under rational basis
review to the state—an extremely consequential departure from traditional
applications of the test.
That the Court has
shifted the burden in these cases is evidenced by the features of its analysis
and the language it deploys. Under
heightened rational basis review, the Court looks at actual, not imaginary,
legislative purposes. It parses
legislative history in search of such purposes.
It examines evidence that is present or absent from the record. It is sensitive to significant levels of
over- and under-inclusiveness. And it
requires the government to articulate some affirmative connection between the
trait that defines the classification and the interests advanced in
justification of the discriminatory law.
This burden-shifting is
the critical antidote to the flaws of traditional rational basis review. This is appropriate, because the extreme
deference encompassed in traditional rational basis review is based on a
presumption of constitutionality. That
presumption evaporates once there is reason to believe animus is afoot.
At the end of the day, the Equal Protection Clause is concerned not
with discrimination per se, but with invidious discrimination. Certain
categories of discrimination are presumptively invidious, including
discrimination based on suspect and quasi-suspect classifications, and
discrimination regarding fundamental rights.
Animus can be seen as the doctrinal tool for detecting invidious
discrimination in all other cases.