This post is part of the Symposium on Unconstitutional Animus.
First, let
me thank Susannah for organizing this online symposium, on a topic that is
becoming more and more central to the Court’s approach to equal
protection. I have a few quick and
tentative reactions to her lead-off post.
I think
Susannah is right that a finding of animus at least sometimes triggers a shift
of the burden of proof. Cleburne is the clearest example of this
phenomenon; as readers will likely recall, the Court in that case implied that
it had searched the record for evidence supporting the challenged government
action – thus suggesting that the government bore the burden of demonstrating
the requisite rational relationship to a legitimate interest. Other Supreme Court cases, though, don’t seem
to me to reflect that shift. Most
notably, as she notes, the Court in Windsor
did not seriously engage in testing DOMA against the interests asserted by its
defenders.
More
conceptually, I wonder about her suggestion that animus should merely trigger
heightened review. If in fact a
government action is infected by animus (eliding, until the paragraph below,
how much “infection” is required), then it seems to me that there’s an argument
for finding it invalid simply on the strength of that conclusion. As I will note in my own post, the modern
Court’s concern about animus can be analogized, if only generally, to the late
nineteenth/early twentieth century Court’s concern with “class legislation.” Perhaps even more remotely, it can also be
analogized to the framers’ concerns with factional capture of the legislative
process. If the analogy holds (and it
might not), then an action’s infection with animus should doom it, just as a
conclusion that a statute constituted class legislation did during the Gilded
Age/Lochner Court.
The problem
with this idea arises from the phenomenon of mixed motives. As Susannah notes, it is quite possible that
a statute will feature “some” evidence of animus. Susannah’s analysis would have a court
respond to such evidence by performing heightened review of the type she
describes. The idea, I assume, is that
such heightened review will, to use the Court’s words from Croson, “smoke out” statutes that “really” (my word) reflect
animus. If I’m reading her correctly
(and I might not be), then she and I don’t necessarily disagree that animus
should doom a statute; instead, we simply disagree on how one finds
animus.
But maybe we
disagree more than I think. For example,
if a court finds some evidence of animus, but concludes that the law passes rational
basis review, I would think that she would have the court uphold the law, even
if the evidence of animus was staring the court in the face. In that case, a law would, in a very real
way, reflect animus, yet she would favor upholding it. I’m not sure I would.
Bill Araiza is a Professor of Law at Brooklyn Law School. He can be reached at: bill.araiza at brooklaw.edu.