Cleburne Not Romer: Objective versus Subjective Theories of Animus

Abstract:     

There has been a concerted effort by jurists and scholars to characterize the doctrine of animus in a way that raises the doctrinal, political, and institutional stakes of invoking the doctrine to an intolerable level. This strategy appears designed to accomplish two primary outcomes. First: to eliminate a useful, equality-forcing doctrine (i.e., animus) from the equal protection lexicon. Second: to preemptively carve out a space for accommodation of religious objection to same-sex marriage and the equality of sexual minorities.

As explained in greater detail in the essay, one can observe two competing theories of unconstitutional animus: a weak subjective theory and a more vigorous objective theory. The subjective theory reduces the concept of animus to something akin to discriminatory intent — the idea that a law violates equal protection only when it is motivated by ill will on the part of its proponents. By contrast, the objective theory of animus requires no inquiry into the hearts and minds of legislators or voters, but instead focuses on the structure and impact of the challenged law.

Significantly, the objective theory of animus moves us past an antiquated understanding of discrimination based on conscious and explicit expressions of bias and toward a more realistic and productive understanding of discrimination based on unconscious bias as it manifests in legal structuring.

This essay documents the effort to cabin the doctrine of animus, and demonstrates how this effort conflicts with established animus precedent.

Number of Pages in PDF File: 21