Windsor, Animus, and the Future of Marriage Equality

Abstract

Before Windsor, there were three unanswered questions about the doctrine of unconstitutional animus: (1) how the Court defined animus; (2) what the Court accepted as evidence of animus; and (3) how the Court understood the relationship between animus and rational basis review. After Windsor, these three questions remain unanswered. Indeed, these precise questions were the object of heated --- and ultimately unresolved --- debate between the majority and dissenting opinions in the case. Thus, with Windsor, the Court declared that animus remains a relevant concept in the Court’s equal protection jurisprudence and confirmed that proving the presence of animus is a viable strategy for winning a marriage equality challenge. And yet the Court failed to clarify the contours of the concept, leaving advocates, as well as lower federal and state courts, without guidance on how to articulate and apply the doctrine.

Keywords: same-sex marriage, marriage equality, Hollingsworth v. Perry, United States v. Windsor, equal protection, animus, unconstitutional animus