This post is part of the Symposium on Unconstitutional Animus
It has been fascinating to learn more about my colleagues’
views of the doctrine of unconstitutional animus. I think that the diversity of viewpoints expressed
in this symposium strongly underscores the point that the doctrine remains
unconsolidated. There are serious—even
foundational—questions that need to be resolved.
In his response to my post, Bill Araiza appropriately calls
me out for shifting away from my original view that animus is a “doctrinal
silver bullet” to embracing a much milder position that the presence merely
triggers a heightened form of rational basis review. In my 2012 article, Unconstitutional Animus, I asserted that it was proper to treat
animus as a doctrinal silver bullet because, if a law based in animus is
understood as necessarily constituting invidious discrimination, this is
precisely what the Equal Protection Clause prohibits. To find that a law is based in animus but
nonetheless passes constitutional muster would be troubling, to say the least.
In that 2012 article, I anticipatorily critiqued the position I am now
(tentatively) taking:
[U]nderstanding animus as nothing more than a gateway to “heightened rational basis review” perpetuates the unjustified fixation on levels of scrutiny in equal protection jurisprudence. As others have noted, this fixation on levels of scrutiny actually shortcuts nuanced, substantive assessment about what sort of laws are fair or unfair, and why. In addition, the Court has never acknowledged that it applies “heightened rational basis review” in certain cases, and it is difficult to imagine the incentive for adding yet another level of scrutiny to an already dubious doctrinal taxonomy.
[T]his view is problematic because it suggests that a court could find that a law was based in animus, but nevertheless conclude that the law satisfied so-called “heightened rational basis review.” This would put the courts in the position of validating laws animated by purpose fundamentally at odds with the values of the Equal Protection Clause.
The primary reason I have backed away from the “silver
bullet” theory of animus is that is seems to me that this formulation raises
the stakes too much. I am not so much an
“advocate” of the more modest claim as I am attempting to find a workable
solution to the animus conundrum, and te judicial discomfort with animus. If finding animus is going to be the sole
reason for striking down a law, one would expect, in the words of Justice
Scalia, “the most extraordinary evidence” in support of this conclusion. It raises difficult—perhaps insurmountable—questions
about how much animus is “enough” to justify striking down a law. This pushes us toward understanding animus as
equivalent to discriminatory intent, which I know Bill and I both think is
deeply wrong (though Dale disagrees).
I am comfortable concluding that the best approach is to
understand animus as triggering heightened rational basis review because I
believe that (1) this is a more palatable solution for the courts, and (2)
heightened rational basis review—properly understood—is sufficient to “smoke
out” laws that are primarily aimed at expressing and enforcing private bias
against a disfavored group.
Bill correctly notes that heightened rational basis review
has not been consistently articulated or applied, but I think this can be
resolved by focusing on more helpful precedent—like Cleburne and Moreno—and
bracketing to some extent less helpful precedent like Romer and Windsor.
Furthermore, while Windsor
did not explicitly announce or apply a level of scrutiny, Justice Kennedy did
state that the federal government was unable to provide a justification that
“overcame” the finding of animus. This
is at least implicit support for the notion that heightened rational basis
review was applied in the case and that the burden was placed on the government
under that standard.
Susannah Pollvogt is an Associate Professor at Washburn Law. She can be reached at: susannah.pollvogt at washburn.edu.