Thursday, October 02, 2014

Animus in Five Steps

Guest Blogger

Dale Carpenter

This post is part of the Symposium on Unconstitutional Animus

Animus has emerged over the past four decades as a distinct concern in Equal Protection doctrine. In four decisions—an animus quadrilogy—the Supreme Court has found animus where Congress denied food stamps to “hippie communes” (Moreno), where a city zoning board denied a special permit to operate a home for the cognitively disabled (Cleburne), where a state denied all antidiscrimination protections based on homosexual orientation (Romer), and most recently, where Congress denied any federal recognition to married same-sex couples (Windsor). The basic concern goes back at least seventy-five years to Carolene Products, in which the Court condemned laws so rooted in “prejudice” that they tend to corrupt the very political processes by which policy decisions are ordinarily made. Animus, understood as malice or ill will toward a group manifested in laws designed to injure them, offends the heart of the principle that government may not deny any person the equal protection of the laws.
I recently argued at length in the Supreme Court Review (“Windsor Products: Equal Protection From Animus”) that animus is properly a constitutional concern and that the Court is competent to police at least clear cases of it. The idea that animus offends the Constitution is surprisingly uncontroversial; no Justice has ever denied the basic principle. I won’t repeat the arguments about that here.
But the methodological question—how the Court can determine when an act of government offends the animus principle—is more complicated. I discuss the issue at length in the Supreme Court Review, so here I’ll just summarize the main considerations as they’re emerging.

The anti-animus doctrine is a species of purpose analysis in constitutional law. In equal protection cases, the Court has teased out impermissible purposes where governmental decision makers have claimed permissible ones. While the Court hasn’t systematically laid out its methodology in animus doctrine, we can discern an approach based on the racial-purpose cases and the animus quadrilogy.
Consider the Court’s equal protection methodology in racial discrimination cases. “Necessarily,” the Court held in Washington v. Davis, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” A law’s disproportionate racial effect is relevant, but usually not sufficient, to show a racially discriminatory purpose.
There is no requirement that the discriminatory purpose be the only conceivable one. “Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one,” said the Court in Arlington Heights v. Metropolitan Housing Corp. The racial purpose need only be “a motivating factor in the decision” to support the conclusion that the action is unconstitutional. In fact, the Court has repeatedly struck down laws that were facially neutral on the grounds that they reflected a racially discriminatory purpose.
In the past four decades, an analogous methodology has gradually developed in animus cases. As in the race cases, the government rarely concedes that it acted because of animus—indeed, such a purpose is disclaimed. Instead, the government often characterizes the harm done to one class as merely an effort to benefit a different class. In a given case, which characterization of the government’s purpose, the government’s own benign characterization or the challenger’s malign one, should the Court credit? 
It is possible that the government’s act could be characterized accurately as involving both benign and malign purposes. But that mix does not save it from unconstitutionality. As in the race cases, the impermissible animus-based purpose need not be the “sole” or “dominant” one.  It need only be a “motivating factor,” or as I propose in the Supreme Court Review, a “material influence” in the decision. As in the race cases, the impermissible purpose may be gleaned from both circumstantial and direct evidence. In fact, considering the animus quadrilogy as a whole, the Court’s decisions suggest that the inquiry into legislative motive—or more often, purpose—is not a subjective one. Determining whether animus materially influenced the government’s act rests on a variety of considerations that are objective in the sense that they do not depend on discovering subjective legislative intent.
The inference that animus was a material influence in the government’s decision can be drawn from a totality of the circumstances rather than from a mechanical rule. A number of factors have been considered in making this inference. The animus decisions, especially Windsor, taken together with the racial-purpose decisions, suggest that these factors include consideration of:
(1) the statutory text (Romer and Windsor) (textual);
(2) the political and legal context of passage, including a historical background demonstrating past discriminatory acts and a departure from the usual substantive considerations governing the decision, especially if the considerations usually relied upon by the decisionmaker strongly favor a decision contrary to the one reached (Moreno, Cleburne, Romer, Windsor, Arlington Heights) (contextual);
(3) the legislative proceedings, including evidence of animus that can be gleaned from the sequence of events that led to passage, the legislative procedure, and the legislative history accompanying passage (Moreno, Windsor, Arlington Heights) (procedural);
(4) the law’s harsh real-world impact or effects, including injury to the tangible or dignitary interests of the disadvantaged group (Romer, Windsor, Davis) (effectual); and
(5) the utter failure of alternative explanations to offer legitimate ends along with means that really advance those ends (Moreno, Cleburne, Romer, Windsor) (pretextual).
Each of these factors involves complications of its own that I will not address here, but that are discussed in my Windsor Products article. But based on a consideration of them, an animus-based purpose may be inferred even where it is not admitted. The Court’s animus cases show that no single one of these factors must be present in order to make the inference. The factors may be used to evaluate decisions made by a legislature (Moreno, Windsor), by a popular vote (Romer),  by an administrative body (Cleburne), or by any other governmental official or entity. The animus-based purpose may be found in government acts that are very broad (Romer, Windsor) or very narrow (Moreno, Cleburne).
The fifth factor—consideration of the government’s non-animus-based justification for the act—deserves special attention. In the race cases, the fifth factor comes into play as a burden-shifting exercise: when a prima facie case of impermissible racial purpose is made the burden shifts to the government to explain its decision on non-racial grounds. In the animus cases, this factor has played out somewhat differently: consideration of the strength of the government’s non-animus-based justification is a part of what goes into the ultimate determination of whether animus was a sufficiently motivating purpose behind the government’s act.
When other indicia of animus are present, the fifth factor is more demanding and operates differently than traditional rational-basis review. If a mere “rational” relationship to a “legitimate” purpose were all that was required in animus cases, each of the four major animus decisions would have come out the other way because the government’s act in each could be justified on some far-fetched and hypothetical ground. In Moreno, for example, the desire to save money could have rationally explained the denial of food stamps to hippies. In Windsor, Congress’s asserted preference for moving slowly on social change or its efforts to control its own spending programs would have prevailed in a challenge to DOMA. But they didn’t.
A poor fit between means and ends could be explained by many things other than animus: bad information, stupidity, or excessive caution. But it’s obvious that the Court is not always willing to indulge the presumption that Congress was merely incompetent rather than hateful. And it’s not willing to tolerate wildly over- or under-inclusive laws once animus is otherwise detected.
That’s because the presence of animus has what we might call a tainting effect. In animus cases, the Court does not simply declare that a discovered malicious purpose (like condemning homosexuality) is “illegitimate” and that Congress must find an alternative “legitimate” one. It does not just take one proffered justification off the table and then ask the government, “What else have you got?” The discovery of animus is instead an affirmative reason to invalidate an otherwise constitutional law.
By the time the Court reaches consideration of possible pretext—the relationship between the asserted (non-animus-based) objective and the means used to serve that objective—it has already been alerted to the strong possibility that the permissible explanation is makeweight or pretextual. The fact that proffered innocuous rationales in the animus quadrilogy failed suggests that the presumption of constitutionality is no longer operative.

Dale Carpenter is a Professor at the University of Minnesota Law School.  He can be reached at: dalecarp at

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