The Etiquette of Animus

39 Pages Posted: 13 Nov 2018

See all articles by Leslie Kendrick

Leslie Kendrick

University of Virginia School of Law

Micah Schwartzman

University of Virginia School of Law

Date Written: November 12, 2018

Abstract

Masterpiece Cakeshop v. Colorado Civil Rights Commission presented a conflict between LGBT rights and religious liberty. The Supreme Court avoided sorting out the principles for resolving that conflict by holding that state officials had expressed animosity toward religious objectors, treating them without the respect and consideration required under the First Amendment. The Court thereby turned a matter of constitutional principle into one of adjudicative etiquette.

The Supreme Court’s reliance on animus doctrine in Masterpiece was troubling for several reasons. First, the Court misread the facts to find intentional hostility in the application of civil rights laws. Second, the Court failed to address standard objections to judicial inquiries into the intentions of public officials. Third, by focusing on the state's religious hostility, the Court provided insufficient guidance about the principles governing religious exemptions from antidiscrimination law. Moreover, these problems of fact, doctrine, and principle point toward a more profound mistake in Masterpiece. The Court erred by elevating matters of etiquette—the importance of appearing respectful and considerate—over giving a reasoned justification for resolving conflicts between religious liberty and antidiscrimination law. While the Court’s rhetoric sounded in religious neutrality and toleration, its reasoning fell short of satisfying the “duty of civility,” which requires providing sufficient reasons for legal decisions. When etiquette takes priority over reason-giving, it loses its normative force and obscures the importance of public justification in maintaining respect for religious beliefs in the public sphere. Finally, the Court’s demand for tolerance and respect in Masterpiece was inconsistent with its abdication of that demand in Trump v. Hawaii, which upheld President Trump’s travel ban. After the travel ban case, we can find no principled application—no integrity—in the etiquette of animus doctrine.

Keywords: Religious liberty, LGBT rights, animus, etiquette, civility, First Amendment

Suggested Citation

Kendrick, Leslie and Schwartzman, Micah, The Etiquette of Animus (November 12, 2018). Harvard Law Review, Vol. I32, No. 1, p. 33-70, 2018; Virginia Public Law and Legal Theory Research Paper No. 2018-62. Available at SSRN: https://ssrn.com/abstract=3283346

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Micah Schwartzman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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