Wednesday, October 15, 2014

Conclusion to the Animus Symposium: Animus Going Forward

Guest Blogger

Susannah W. Pollvogt

This is the final post in the Symposium on Unconstitutional Animus.

While the constitutional concept of animus was born in a case about discrimination against hippies, and was significantly elaborated in a case about persons with cognitive disabilities, since the Court’s 1996 decision in Romer v. Evans, animus has come to be strongly associated with protecting the rights of sexual minorities.  (See Bill Araiza’s post in this symposium: “[A]nimus has become a central organizing principle of the Court’s sexual orientation discrimination jurisprudence.”  And Russell Robinson’s: “The modern Court has refused to extend those precedents [Moreno and Cleburne] in every context except gay rights.”)

This reliance on animus in the sexual orientation cases may represent, as Neil Siegel has used the term in other contexts, a “way station” to application of traditional equal protection doctrines (suspect classification analysis and explicit application of heightened scrutiny) to sexual minorities.  Alternatively, it may represent a non-transitory commitment to approaching the sexual orientation cases in this manner.

In either case, now that the Court has tabled the issue of same-sex marriage—perhaps temporarily, perhaps permanently—the question becomes whether the doctrine of animus has significance outside of the same-sex marriage context.

It would seem so.  As Justin Marceau described in his post to this symposium, he and his colleagues have been able to successfully raise the issue of animus in the context of protecting a relatively novel politically unpopular group—animal rights activists.  Other advocates have successfully argued the presence of animus against immigrants as a basis for an equal protection claim.

This suggests that animus may have traction with the courts outside the context of same-sex marriage and discrimination on the basis of sexual orientation.  I for one am particularly interested in whether the doctrine of animus might be invoked to protect the rights of felons, who are routinely targeted by laws attaching collateral consequences to their status as ex-offenders.  This inquiry is particularly salient in light of Michelle Alexander’s work on our creation of a vast, disenfranchised criminal class.


The question of whether the doctrine of animus can help new politically unpopular groups necessarily requires us to ask whether the doctrine is broad enough, flexible enough, and vigorous to protect the established suspect and quasi-suspect classes.

Specifically, as Russell Robinson contended in his contribution to this symposium as well as his forthcomingarticle, the Court seems able and willing to recognize animus against sexual minorities, but not against racial minorities:

The Supreme Court’s equal protection jurisprudence places people of color and LGBT people on segregated doctrinal paths heading in divergent directions.  While equality is expanding for LGBT people, it is evaporating for people of color.
Robinson’s critique exposes the uneasy connection between the increased willingness to confess prejudice against sexual minorities and the increasingly urgent claim that racism and sexism are “over”:
[The animus doctrine] reflects one man’s intuition that people of color and women have obtained enough justice in the courts, and the focus of modern equal protection doctrine should be gay rights cases, which are typically fronted by white, affluent plaintiffs, such as Edith Windsor, and so-called “reverse discrimination” claims brought by whites in cases like Ricci and Parents Involved.
Is animus a doctrine that is in play only with respect to prejudices we are comfortable confessing?

The unsupported conclusion that racism is “over”—a theme central to reasoning in the Court’s recent decisions in Fisher, Shelby County, and Schuette—is one of the most important issues of our time, and is intertwined with the question of whether animus is a doctrine of universal application, or a contrivance limited in effect to those groups for which members of the Court feel empathy.


Animus will go on, and there are as many pressing questions about it as ever.  The participants in this symposium have addressed several of these.

Neil Siegel tackled the question of whether we need the concept of animus when we have a clear—and perhaps more respectful—rule about the impropriety of relying on moral opposition in enacting discriminatory laws.

This provokes a necessary and continued discussion of private versus public values, as the next wave of litigation deals with religious exemptions to honoring the rights of same-sex couples.

Dale Carpenter offered an intriguing model to guide courts in finding the presence of animus.  An articulated evidentiary standard for animus is, as Dale emphasizes, a necessary prerequisite for establishing that courts are competent to invoke this controversial doctrine.  Particularly significant is Dale’s well-supported claim that evidence of animus can be found in examining the effects of a discriminatory law.  Animus has been criticized as a doctrine overly concerned with illicit motives, but it may in fact revive a concern with the impact of discrimination upon its victims.

Another web of uncertainty is found in the relationship between the doctrine of animus, Congress’ power to enforce equal protection principles, and the Court’s aggressive patrolling of that power.  Bill Araiza detailed this conundrum, focusing on the difficulty of adapting the new, animus-based equal protection to the congruence and proportionality inquiry:
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.
If Congress tries to flex its enforcement power, will the doctrine of animus enhance or restrict that effort?


My hope is that animus will continue to be invoked and explored as a way of addressing both new and old prejudices.  In the best case scenario, the doctrine of animus could be a way of more honestly recognizing the persistent human impulse to create castes in society, and honoring our noble, democratic commitment to resist and correct that impulse.

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

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