Friday, October 03, 2014

Animus, Equal Protection, and Its Enforcement

Guest Blogger

Bill Araiza

This post is part of the Symposium on Unconstitutional Animus.

Animus is hot.  With the Supreme Court’s seeming abandonment of political process analysis to identify constitutionally-suspect discrimination, animus has become a central organizing principle of the Court’s sexual orientation discrimination jurisprudence.  Indeed, animus may become the favored approach to any type of discrimination that did not achieve suspect or quasi-suspect status during the heyday of political process analysis.  Going forward, discrimination based on such emerging categories will likely be evaluated through a template that looks less like the sex, illegitimacy and alienage cases of the 1970’s and more like the now-classic Moreno-Cleburne-Romer trilogy (to which we can now add Windsor and even Lawrence).

But like an actor whose weaknesses become obvious when he gets a larger part, the brighter spotlight shone on animus highlights the confusion surrounding that idea.  Participants in this symposium engage several important questions concerning animus.  This post identifies another: the problem posed by the uncertain relationship between an animus-based approach to equal protection and the Court’s current approach to congressional legislation enforcing the Equal Protection clause.

This problem arises from the Court’s application of the “congruence and proportionality” standard governing enforcement legislation since City of Boerne v. Flores.  Scholars have criticized that standard.  But assume its correctness.  After Boerne the Court applied it by testing enforcement legislation against its own decisions about the suspectness of the discrimination such legislation targeted.  Most infamously, in Board of Trustees v. Garrett the Court tested the ADA’s employment provisions against its own decision, two decades earlier in Cleburne, that disability discrimination merited only rational basis review.  Garrett concluded that the allegedly trivial constitutional status of disability discrimination meant that those provisions were likely excessive in relation to the unconstitutional conduct they targeted.

The Court’s use of its own suspect class determinations as the focal point for congruence and proportionality review is problematic.  Suspect class determinations such as Cleburne’s often emphasize anxiety about judicial interference with legislative prerogatives, and courts’ incompetence to second-guess difficult regulatory decisions.  Such concerns are irrelevant to Congress’s Enforcement clause authority.  (To be sure, federalism implications remain, but reflect different concerns.)  This problem will likely recur, given Congress’s enactment of legislation benefitting groups whose suspect class status has not been determined, including the already-enacted Genetic Information Non-Discrimination Act and the pending Employment Non-Discrimination Act.  How would the Court apply its current Enforcement clause template to a statute like ENDA, which benefits a group has not had its suspect class status determined, and quite possibly never will?

Of course, gays and lesbians have been on a judicial winning streak.  At the Supreme Court, those wins rest largely on the Court’s conclusion that the challenged legislation reflected “animus.”   But animus has an uneasy relationship to current enforcement power doctrine.  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.  It’s (at least theoretically) straightforward for the Court to conclude that enforcement legislation benefitting a suspect class is likely congruent and proportional, since suspect class status implies a judicial conclusion that discrimination against that group is likely unconstitutional.  But conclusions that Colorado’s Amendment 2, or Section 3 of DOMA, were uniquely based on dislike of gays and lesbians, say little, as a logical matter, about the constitutionality of sexual orientation more generally.  (Chief Justice Roberts made just this point in Windsor when he noted the limited impact of the Court’s conclusion about DOMA’s animus on state same-sex marriage prohibitions.)  In other writing I have called this approach to constitutional questions “pointillist” (after the painting style).  It’s unclear how such pointillist decisions should influence the congruence and proportionality inquiry, as the Court has generally performed it.

Despite this difficulty, animus should remain an important component of equal protection doctrine.  In other writing I have argued that, rather than asking whether enforcement legislation is congruent and proportional to its own institutionally-constrained suspect class conclusions, the Court should instead test such legislation against core constitutional meaning.  The anti-animus rule constitutes part of that core meaning.  That rule echoes the late nineteenth and early twentieth-century Court’s concern with so-called “class legislation” – i.e., legislation imposing unequal burdens without a public-regarding reason.  The concepts are not identical: “animus” sometimes seems like a subjective concept, reflecting majoritarian “dislike” of the burdened group, while courts often condemned a statute as class legislation after deciding that it classified without reference to a legitimate policy need.  But, as Romer demonstrated, the modern Court sometimes identifies animus similarly, as a default conclusion that emerges as the only explanation for a statute after more legitimate justifications are found wanting.  (Indeed, Romer spoke of “class legislation” after rejecting Colorado’s proffered justifications for Amendment 2.)  Such methodologies suggest an affinity between the two concepts.

The idea traces back even farther, and echoes the framers’ concerns about “factions.”  Given Madison’s definition of “faction” by reference to whether that group promoted its own private interests rather than its conception of the general public good, that concept also exhibits affinity with the description of animus as a group’s (or majority’s) promotion of purely private biases. 

If these parallels hold up, then the anti-animus rule reflects a core constitutional commitment, with implications for both Congress’s enforcement power and constitutional law more generally.  For the former, it suggests the mistakenness – or perhaps, the incompleteness – of the Court’s post-Boerne template keying its scrutiny of enforcement legislation to the suspect status of the benefitted group.  If the anti-animus rule reflects the core constitutional value such legislation seeks to vindicate, then the Court must determine how to map that pointillist value onto enforcement legislation’s inevitably broader brushstrokes. 

More generally, the status of animus as a core constitutional value will require some hard thinking about constitutional doctrine.  Scholars such as Steven Smith have criticized Windsor’s animus analysis as inappropriately disparaging Congress.  Others have broadened the critique, charging Justice Kennedy with insulting citizens holding sincere moral beliefs condemning same-sex marriage.  To the extent animus constitutes subjective dislike of a group, judicial conclusions of animus trigger criticisms about courts’ competence to discern legislators’ (and citizens’) motivations.  To the extent it constitutes a default conclusion applicable when a law otherwise fails rational basis review, it inevitably raises questions about the strictness of such review.  Justice Scalia raised both issues in his Windsor dissent.  The majority offered no satisfactory answer, other than to suggest (channeling Romer) that DOMA’s unusual breadth raised an inference of animus.  While promising, and appropriate when applied to truly unusual legislation such as Amendment 2, this approach is subject to manipulation.  For example, is a same-sex marriage ban unusually broad, given the many rights that come with marital status, or a conventional regulation of one regulatory area?  And this is not even to broach the question – to which the Court has provided conflicting answers – whether animus constitutes a constitutional violation in itself, merely evidence of one, or a factor triggering closer scrutiny.  If animus is to take center stage, the Court will need to do more than announce vague, manipulable, criteria for determining its existence.

Bill Araiza is a Professor of Law at Brooklyn Law School.  He can be reached at: bill.araiza at

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