an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We learned today that the Supreme Court won't be providing guidance on the doctrine of animus in the context of the marriage equality cases--at least not anytime soon. The Court denied certiorari in all seven of the marriage cases it had under consideration, for reasons that many of us will speculate about for weeks to come.
At the end of the day, no group of four justices thought it was a good idea to take up the merits of state-level marriage equality. Perhaps one reason was that they were afraid of their own creation: the doctrine of animus. Because it is one thing to say that Congress acted with animus by passing the "unusual" measure of the federal Defense of Marriage Act back in 1996; it is quite another to say that voters acted with animus in amending their state constitutions in the mid-2000s. (To say that anyone "acted with animus" is contrary to my view of how the doctrine works, but the view of animus as equivalent to "hostility" is likely the prevailing view and is the view that would cause the most concern in terms of striking down popularly enacted marriage bans). To take up the state-level marriage cases would necessarily require the Court to confront whether the reasoning of Windsor would or should be applied to state marriage bans.
I note that several of my colleagues disagree that animus would have played a starring role in a decision on the state-level marriage bans. Now it seems we will never know.
To me, this raises the intriguing possibility that the doctrine of animus will be developed in other, non-same-sex marriage contexts. Indeed, this possibility is manifest in Justin's recent post about invoking the doctrine to protect the rights of animal rights activists, and in Russell Robinson's forthcoming post about animus as it relates to the larger whole of equal protection jurisprudence, in particular to the original concern with racially invidious laws. The Court's decision in Schuette last term harshly illuminated that equal protection "no longer protects" against contemporary race discrimination, raising the question of whether animus is a doctrine available to race minorities, or only sexual minorities?
Susannah Pollvogt is an Associate Professor at Washburn University School of Law. She can be reached at: susannah.pollvogt at washburn.edu.