William D. Araiza

 

On his book Animus: A Short Introduction to Bias in the Law

Cover Interview of June 14, 2017

In a nutshell

This book explores the concept of “animus” in the law of the Constitution’s Equal Protection Clause. Over the last thirty years, the Supreme Court has decided several important equal protection cases by concluding that the challenged government action was motivated by “animus.” Animus is a tricky concept in constitutional law. It has an everyday meaning, denoting action that is motivated by ill-will. But this common-sense meaning does not easily translate into equal protection law. Equal protection concerns itself with government action, and thus, action that is often institutional, rather than action taken by an individual whose subjective motivations can be examined.

The book constructs a constitutional theory of animus—that is, a theory that provides a workable approach by which courts can determine whether an action is based in animus. The first half of the book is mainly taken up with examining the Court’s most important statements about animus. The foundational case, from 1973, stated that “a bare ... desire to harm a politically unpopular group cannot constitute a legitimate government interest.” That case, Department of Agriculture v. Moreno, struck down an amendment to the federal food stamp law that denied food stamps to unrelated groupings of persons living in the same household. The Court cited congresspersons’ statements that the amendment targeted “hippies” and “hippie communes” to conclude that the statute was, indeed, motivated by “a bare ... desire to harm” such persons.

Starting a dozen years later, in 1985, the Court began building on Moreno’s statement as a justification to strike down laws ranging from a city’s rejection of a group home for the intellectually disabled to the federal government’s refusal, in the Defense of Marriage Act, to recognize same-sex marriages valid in the states where they were performed. While all of these cases relied on a conclusion that the challenged action was motivated by animus, and while all of them added to our understanding of the emerging animus doctrine, the Court has yet to unite these strands into a coherent whole.

The second part of the book attempts to create that doctrinal fabric. It explains how the strands of animus doctrine parallel another equal protection doctrine, one that governs how courts determine whether a government action was taken with “discriminatory intent.” The concepts of discriminatory intent and animus are analogous. As the book explains, it thus makes sense that the Court’s approach to discriminatory intent provides a template for its emerging animus doctrine. But even though the concepts are similar, they’re not identical. Thus, the book also explains how its proposed approach to uncovering animus differs from discriminatory intent doctrine.

After setting forth this approach, the book concludes by applying it to a variety of current equal protection issues, from gay rights to transgender rights to the rights of disabled people. It concludes by returning to a point the book makes in Chapter 1: namely, that the concept of “animus” is one with deep roots in American law that go back even before the Equal Protection Clause was drafted. Thus, it argues that our modern concern with animus is faithful to our deepest constitutional traditions.