Brief of Amicus Curiae Susannah W. Pollvogt in Henry v. Himes (6th Cir.)

34 Pages Posted: 20 Jul 2014

See all articles by Susannah Pollvogt

Susannah Pollvogt

University of Arkansas, Fayetteville, School of Law

Date Written: July 18, 2014


Thirty years ago, the United States Supreme Court articulated a simple but powerful proposition — that the public laws may not be used to enforce private bias: "The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." While the doctrine of unconstitutional animus can be traced through a number of cases, the Court’s decision Palmore provides the doctrine’s core. It draws a key distinction between the public purposes that laws may legitimately serve and private biases that they may not. But this simple concept — that the public laws may not give effect to private bias — is complicated by the question of how courts are to identify when a law or other state action is performing this impermissible function.

A comprehensive examination of the entirety of the Supreme Court’s animus jurisprudence reveals at least one clear principle: where, as in the instant case, there is direct evidence of private bias in the legislative history surrounding the enactment of a law, the Court will at a minimum apply a heightened form of rational basis review. The primary characteristics of this level of scrutiny are that it: (1) shifts the burden of proof from the plaintiff to the government; and (2) requires the government to show that the trait that defines the classification is affirmatively related to the purported governmental interest in regulating the right or benefit at issue.

Applying this standard to the case at hand, the history surrounding the enactment of Ohio’s Marriage Laws provides an easy case for finding the presence of unconstitutional animus. Significantly, the official explanation for the law stated that the law’s purpose was to exclude homosexuals from marriage because homosexuality was deemed “deviant.” This is a bare statement of moral disapproval that evidences the presence of animus, thereby demanding the application of heightened rational basis review.

Keywords: constitutional law, equal protection, same-sex marriage, animus

Suggested Citation

Pollvogt, Susannah, Brief of Amicus Curiae Susannah W. Pollvogt in Henry v. Himes (6th Cir.) (July 18, 2014). Available at SSRN: or

Susannah Pollvogt (Contact Author)

University of Arkansas, Fayetteville, School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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