Our search for animus over the course of this book has covered a lot of ground. Temporally, it has ranged from the eighteenth century’s idea of faction, to the nineteenth century’s class legislation concept, to Obergefell’s intricate combination of equal protection and due process in 2015. In terms of subject matter, within the modern era it has ranged from hippies to the intellectually disabled to gays and lesbians. Most notably for our purposes, animus is similarly varied in terms of doctrinal elements, focusing on considerations as varied as subjective bad intent, objective indicators of such intent, and (in Obergefell) the vague, but resonant, concept of dignity.
The prevalence of this wide variety of factors might leave you with the impression that animus doctrine is a jumble—that all our analysis has simply left us with scattered walls, floors, and foundations, rather than a coherent structure. But perhaps the better way to understand the Court’s current approach to animus is that these various considerations reflect different aspects of the same idea. To stretch our construction metaphor, the Court’s current doctrine may best be understood as creating a coherent home composed of different rooms. The rooms are distinct, to be sure. But they are connected. And that connection reveals, in the end, a coherent structure—indeed, a structure that is amenable to future additions.
Anti-discrimination law is complex, mirroring the phenomenon it seeks to prevent. As the Court’s cases have recognized, some cases are easy. Laws preventing blacks from exercising the rights enjoyed by whites present an easy case. As we all know, not all cases are that easy. Is it unconstitutional for the government to prefer the foreign-born children of American mothers over the foreign-born children of American fathers, on the theory that the act of giving birth gives mothers an opportunity to develop a parental relationship that is simply different from fathers’?1 Is it unconstitutional for a state to require that eye care patients seeking an optician’s services in fitting corrective lenses first consult an ophthalmologist or optometrist?2 Is it unconstitutional for a traffic officer, when confronted with a highway full of speeders, to close his eyes and ticket the first speeder he sees when he reopens them?3
Animus cases can be difficult, too. As we have realized, they are inherently granular—the entire reason courts perform animus analysis is that broader-brush analysis (for example, according heightened scrutiny to all intellectual disability classifications) is unsatisfactory. In turn, such granular analysis necessarily emphasizes the particularities of the case before the court. The resulting importance of those particular facts suggests that animus analysis—the approach courts use to determine whether animus is lurking in a given case—will vary.
We have seen this dynamic in the cases we have studied. For example, we saw in Moreno and Windsor that, when lawmakers explicitly state that they disapprove of the group they are burdening, such statements constitute strong proof of animus. But we also saw that in other cases such statements are less helpful, either because it is difficult to attribute such statements to the governing body (as in Romer, where that body was the entire Colorado electorate) or because the challenge is a broader one, encompassing many different laws and thus many different governing bodies (as in Obergefell). In other cases the relationship was ambiguous for other reasons, as with the Cleburne City Council’s apparent responsiveness to constituents’ statements of disapproval.
Other aspects of animus analysis are similarly granular in application and thus similarly variable. Most notably, as Chapter 11 discussed, different types of discrimination reflect different social dynamics, which in turn call forth different applications of the Arlington Heights intent factors this book has identified as useful guideposts for the animus inquiry. Indeed, some situations, like the one in Obergefell, may be uncomfortable fits with any approach that focuses on intent at all.
The details are intricate, but the basic idea is straightforward: As an approach to equal protection that searches for unconstitutional discrimination at a granular, case-specific level, animus doctrine is incapable of being expressed as a single formula or set of factors, applicable to each case. Rather, each case is its own room.
However, those rooms are connected. The different approaches to animus this book identified (in Part I) and explained (in Part II) share the fundamental goal of policing legislation to ensure that it promotes a public purpose, or at least seeks to. The Court’s focus on legislators’ statements in Moreno and Windsor provide the most direct evidence on that question. As Chapter 6 noted, however, conceptual and practical problems plague sole reliance on such evidence. Thus cases such as Cleburne and Romer focused on other factors (such as the constituent opposition to the group home in Cleburne and the unusual breadth of the law in Romer) as justifications for scrutinizing the challenged action more carefully. As we saw in Chapters 7–9, those factors, and the doctrinal structure within which the Court utilized them, find close analogues in the Court’s discriminatory intent analysis. For our purposes what is important about the use of those factors is that they point back to the underlying inquiry in which all the animus cases engage: Does the challenged law seek to promote a public interest?
Obergefell strains our tentative conclusion that the animus cases can be harmonized in this way—that the “rooms” of the animus “house” are indeed connected. (To be sure, Obergefell does not use the term “animus,” but as I explained in Chapter 12, its conclusions about the stigmatizing and injuring effect of same-sex marriage bans makes it at least a relative of the animus cases.) After all, in that case Justice Kennedy went out of his way to deny any hint that same-sex marriage opponents were motivated by anything we might describe as “bad intent.” Scholars have suggested, however, that Obergefell’s focus on the fundamental nature of the marriage right, when combined with the discrimination inherent in the same-sex marriage bans, created “stigmatizing” and “injuring” effects on gays and lesbians.4 Such effects may amount, if not to our intuition of animus as mean-spiritedness, then to the social subordination of a group that is one of the fundamental wrongs identified in the animus cases.
The addition of Obergefell to our canon of animus (or animus-related) cases brings us to our final question about the current state of animus doctrine: To what extent does that doctrine reflect a coherent understanding of what the Constitution requires? Perhaps counterintuitively, the seemingly rough fit of Obergefell with those earlier cases helps us discern a more fundamental coherence in the Court’s doctrine.
Recall that a fundamental goal of this book was to tie modern animus doctrine back to the nineteenth-century anti-class-legislation tradition. As we saw in Chapter 1, that tradition is deeply ingrained in American law—indeed, going beyond the idea of equality and extending across a wide range of other areas relating to governance.5 But that tradition is a difficult one to enforce: Courts performing class legislation review struggled with the challenge of distinguishing between legitimate attempts to promote the public good that required special treatment of particular groups and illegitimate, private-regarding “class” legislation. We saw modern analogues of this same concern when, in cases such as Cleburne and Romer, we considered the factors that led the Court to scrutinize the challenged discrimination more carefully than normally required by rational basis review.
Scholars reviewing class legislation jurisprudence have sometimes discerned a pattern in nineteenth-century courts’ class legislation jurisprudence. In particular, they have identified the fundamentality of the right at issue as a key factor in predicting whether a court would strike such a law down or uphold it.6 That idea, of course, also lay at the core of Obergefell’s interlocking due process and equal protection analysis. Indeed, Harvard law professor Laurence Tribe has used the suggestive metaphor of a double helix to describe Obergefell’s connection of due process to equal protection.7
This focus on the importance of the right does not necessarily detract from the core of the class legislation idea as we have come to understand it in this book. The underlying idea of class legislation is that legislatures should not be free to burden groups simply because they wish to (that is, without a plausible public purpose). But that prohibition is in turn founded on an even deeper insight: that such purposeless burdening reflects a subordination of that group—as I said earlier in this book, a burdening of a group for no purpose other than to burden it. Such subordination is even more profound when it relates, as it related in Obergefell, to something as important as a fundamental right.
The nature of rights—what they are, and why they matter—is a highly complex legal-philosophical issue that cannot be engaged at this late stage of this examination. But what we can say is that rights are both materially important—that is, they matter for the day-to-day of people’s lives—and highly symbolic, in that they reflect what society deems to be the minimum requirements of a dignified life as a citizen. If we understand rights in this (highly simplified) way, we can understand how their unequal deprivation both injures the deprived group and stigmatizes it. It injures it by withdrawing the material benefits that right provides. It stigmatizes it by making clear to all that that group—and that group alone—is unworthy of the right.
Thus Obergefell’s focus on dignity—and, in turn, autonomy to make decisions about one’s own personhood—holds the promise of connecting animus with both the rest of equal protection doctrine and constitutional individual rights more generally. At this point, this is only promise, not actuality: Justice Kennedy’s soaring rhetoric in Obergefell and other cases requires work before it can be understood as a workable doctrine. But that promise exists, and with it, the potential for connecting our animus structure even more securely to the rest of American constitutional law and, thus, solidifying its own rightful place in that law.
Up to now I have talked about animus doctrine in terms of the house we have built up to now. But how about further additions? Is the floorplan compatible with such extensions?
The first thing we should note is that there may well be a need for such extensions—or, to express it in terms of the doctrine rather than the metaphor, animus may grow in importance in future years. As I noted in the Introduction, American society is growing more and more diverse, as measured by nearly every imaginable criterion. With that diversity comes the prospect, not just of governmental classification (“discrimination,” in common parlance), but the type of classification that subordinates—that is, classifications that reflect either an intent to make one group lesser than another or classifications, like the ones in Obergefell, that have such severe impacts on one’s equal dignity that they have the effect of subordinating.
One might concede this but still wonder why animus doctrine needs to evolve. The reason has to do with the contextualized nature of the animus inquiry, as we have seen in the cases we have looked at. As those cases illustrate, different situations call for different variants of animus analysis. Some may be amenable to a straightforward examination of legislative statements indicating subjective bad intent. Others may require examination of the more objective factors drawn from the Court’s discriminatory intent jurisprudence. Others may call, as in Obergefell, for an inquiry into the impact of the discrimination on the burdened group’s equal dignity. Within these examples there is great room for variation, for example, among the different discriminatory intent factors we have identified as relevant to the animus inquiry and how those factors relate to the dignitary harm the burdened group suffers. Those variations, in turn, create different approaches to the animus inquiry.
The adaptability of that inquiry to different circumstances makes it well suited for twenty-first-century America. As the Introduction noted, the growing diversity of American society raises the prospect of continued social and cultural unease, which will sometimes metastasize into social and cultural conflict. That conflict, in turn, may generate attempts to legislate social hierarchy. We can only guess at the shape such attempts might take. But exactly because those attempts will take different forms and will arise through different avenues, equal protection law needs doctrines that are adaptable. Animus doctrine, as I have explained it, can be one of those doctrines.
Of course, that adaptability can exist only if the doctrine itself appears to observers vague and open-ended. And indeed, animus doctrine can be thus described. Asking the ultimate question about animus—asking, that is, whether a challenged law subordinates a group either intentionally or as a by-product of depriving it of a right necessary to human dignity—requires that we acknowledge the myriad ways in which such subordination can occur. In future cases courts may simply apply a formula from a past case, modify it slightly, or alter it substantially. To the extent those analyses seek to vindicate the ultimate right at stake—the right to be free of government action that targets a group for no good reason—they are legitimate exemplars of animus doctrine. In that sense, they would constitute appropriate extensions to the house we have built.
Finally, animus doctrine echoes the aspirations of nineteenth-century class legislation jurisprudence. Recall, for the last time, that that jurisprudence scrutinized legislative action with the goal of ensuring that no person or group was made the victim of legislative majorities that sought to burden it for reasons that had nothing to do with the public interest. American constitutional law has come a long way since then. Most notably, courts have recognized the futility (and illegitimacy) of second-guessing garden-variety legislation “adjusting” what the Court has described as “the burdens and benefits of economic life.”8 They have also recognized that some classifications—such as those based on race and sex—are inherently problematic. But once we get past those situations, the rules of thumb that courts have used for decades have broken down. A carefully constructed animus doctrine can provide a way for courts to police legislatures’ malfeasance without unduly constricting policy makers’ flexibility to effect such “adjustments.” As such, the doctrinal house we’ve constructed can not only serve modern imperatives but can do so by echoing deep traditions of American constitutionalism. To return one final time to our construction analogy, the house we have built is, we can hope, not only structurally sound and capable of expansion, but one we can recognize as within the historical tradition of American constitutional architecture.