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 umn.edu