I am posting these two papers together:
William D. Araiza (Brooklyn Law School) has posted Animus and its Discontents (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
The concept of animus has taken center stage in high-stakes constitutional rights adjudication. Both in major equal protection cases and, more recently, in litigation over President Trump’s immigration bans and religiously-based denials of commercial services to lesbians and gays, animus has emerged as a favored doctrinal tool of courts committed to protecting individual rights against majoritarian oppression. Despite—or perhaps because of—its prominence, the animus concept has remained controversial. Scholars have criticized the difficulty of uncovering animus, its tendency to inflame the culture wars, and its potential to distract attention from other doctrinal paths that might be viewed as more promising for emerging social groups. At the same time, other scholars have attempted to create a workable animus doctrine from the Supreme Court’s under-theorized applications of the concept in well-known cases such as Romer v. Evans and City of Cleburne v. Cleburne Living Center. This Article considers the arguments made by both the critics and defenders of the animus concept. After recounting the concept’s rise to prominence and scholars’ responses to that rise, it presents an approach to animus that both fits the Court’s analyses of the issue and harmonizes it with its approach to a closely-related doctrine—that of discriminatory intent. This proffered approach answers the critics by explaining how courts can competently uncover the presence of animus while mitigating the worst effects of an animus finding on public discourse on deeply contested concepts, and how animus doctrine can benefit equal protection law more generally. That approach also fills in holes left by other scholars’ constructions of animus doctrine, and refocuses animus away from mistaken directions implied by some of those constructions. The Article then proceeds to contextualize animus within the broader sweep of American constitutional law, by exploring the parallels between the animus concept and the Nineteenth century idea of class legislation. For over a century, the class legislation idea provided the prime organizing principle for state, and later, federal, courts’ enforcement of equality rights under both state constitutions and the U.S. Constitution. By connecting that older idea with modern animus doctrine, this Article aspires both to provide a stable doctrinal grounding for the animus concept, and, in turn, to secure modern equal protection law on a firmer, more historically legitimate, foundation. The Article concludes by speculating more generally about the nature of constitutional rights adjudication. In particular, it considers whether such adjudication can ever hope fully to avoid the critique, leveled against the animus concept, that it necessarily involves name-calling that embitters the losing side and makes long-term social accommodation more difficult. It suggests that this unfortunate dynamic may often be inevitable, rather than simply a result of courts’ use of animus-based reasoning.
Daniel O. Conkle (Indiana University Maurer School of Law) has posted Animus and its Alternatives: Constitutional Principle and Judicial Prudence (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:
In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of constitutional principle. Even so, I argue that the doctrine is highly problematic as a matter of judicial prudence, in part due to workability concerns but especially from the standpoint of what I call judicial statesmanship. As I explain, there are difficult questions surrounding the precise meaning of animus, the issue of mixed motives, and the relationship between animus and traditional religious beliefs. More important, judicial declarations of animus exacerbate the political-cultural divisions and animosities that infect contemporary American politics, damaging the democratic system that the Constitution is designed to protect. Accordingly, I contend that animus should be a doctrine of last resort, to be invoked only when there is no viable and preferable doctrinal alternative.
Both papers are highly recommended.