Monday, September 29, 2014

Persistent Questions About Animus

Guest Blogger

Susannah W. Pollvogt

This post is part of the Symposium on Unconstitutional Animus.

Animus is an enigma. 

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 objective function?

(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 deciding Windsor.

Thus, all the questions about animus that existed before Windsor remain 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.

Traditional rational 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.

Susannah Pollvogt is an Associate Professor at Washburn University School of Law.  She can be reached at: susannah.pollvogt at

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