Animus and Its Alternatives: Constitutional Principle and Judicial Prudence

20 Pages Posted: 15 Aug 2018 Last revised: 14 Feb 2019

See all articles by Daniel O. Conkle

Daniel O. Conkle

Indiana University Maurer School of Law

Date Written: 2019


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.

Keywords: Animus, Bias, Discrimination, Jurisprudence, Constitutional Law, Constitutional Interpretation, Constitutional Theory, Equal Protection, Equality, Sexual Orientation, Gender Identity, Religion, Religious Liberty, Political Polarization, Cultural Conflict

JEL Classification: K00, K10, K19, K30, K39

Suggested Citation

Conkle, Daniel O., Animus and Its Alternatives: Constitutional Principle and Judicial Prudence (2019). Stetson University College of Law, Stetson Law Review, Vol. 48, pp. 195-213 (2019); Indiana Legal Studies Research Paper No. 396. Available at SSRN:

Daniel O. Conkle (Contact Author)

Indiana University Maurer School of Law ( email )

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