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 brooklaw.edu.