When the Fourth Circuit Court of Appeals affirmed the trial court’s preliminary injunction against President Trump’s executive order restricting immigration from certain countries, it cited Trump’s statements about Islam as its rationale. American Muslims challenging the ban had alleged injury of two types: First, the Muslim plaintiffs felt marginalized by the President’s characterizations; second, they missed their overseas family members, who cannot visit the United States for an indefinite time. “[T]he Proclamation is unconstitutionally tainted with animus toward Islam,” the court proclaimed in approving an injunction against a travel ban that the President had documented for the court as necessary to national security. In citing a religious-liberty case from 1993 by Justice Anthony Kennedy, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, in which the court found animosity against the Santeria religion in a law prohibiting animal sacrifice, the court of appeals applied the undeveloped—one is tempted to say ad hoc—but currently powerful doctrine of animus.

Another important case shows the complexities of the doctrine. During oral argument in the recent Craig v. Masterpiece Cakeshop, Inc., in which the state of Colorado asks the U.S. Supreme Court to uphold the constitutionality of requiring a baker unwillingly to perform a personal-service contract for a homosexual wed- ding against his religious beliefs, Justice Kennedy thought he might have detect- ed animus behind the legislation. “[T]he state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs,” he said. This remark presented a slight curveball in a case that the Court accepted on more traditional freedom-of-speech and freedom-of-religion grounds. Alas, soon we are likely to learn the power of the animus doctrine in both Masterpiece Cakeshop, Inc. and International Refugee Assistance Project v. Trump, the Fourth Circuit opinion referenced above that is certain to be reviewed by the Supreme Court. What nevertheless might remain unresolved is whether this doctrine makes any sense.

William D. Araiza, vice dean and professor of law at Brooklyn Law School, in his well-written and revealing new book, addresses animus doctrine as part of Equal Protection jurisprudence, where the doc- trine has been weaponized to defeat laws concerning the rights of sexual minorities. While the author makes predictions about how animus analysis will help these minorities further, he misses the opportunity to examine whether First Amendment animus analysis, which the Fourth Circuit invoked in International Refugee Assistance Project citing Church of the Lukumi, and Equal Protection animus analysis are headed for a showdown in the Supreme Court.

The author begins by attempting to give animus doctrine a pedigree in American law, likening it to the class legislation that concerned the Founding Fathers. The Founders worried that factions uninterested in the public good would control the tools of government, and that the resulting laws—class legislation—would enrich these factions to the detriment of the general public.

As the country’s economy and social structure became more sophisticated, the courts retreated from making such value judgments on legislation, leaving most problems to the self-correcting mechanisms of the democratic process. In 1973, however, the U.S. Supreme Court declared unconstitutional a restriction on the foodstamp program because legislative history suggested that the restriction was motivated by hostility toward cohabiting hippies, who might prefer living on food stamps to working. As Justice William Brennan wrote in Department of Agriculture v. Moreno, “[A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest.” The Court’s bottom line: Mean legislators spawn unconstitutional law. The animus doctrine was forming.

Twelve years later, a unanimous holding was issued in City of Cleburne v. Cleburne Living Center, in which the Court decided that the Constitution required a Texas town to issue a zoning variance for a home for the mentally retarded. The variance had been denied, said the Court, because the city council had bowed to the “irrational prejudices” of its constituents. The possibility that sound policy might have supported the local government’s positions was of no importance to the Court if clues revealed the actual motives to be obnoxious—a foreboding departure from the Court’s usual deference to the political branches if a reasonable basis for their actions could be found. The Court’s bottom line: City councilmen acceding to the wishes of their mean constituents spawn unconstitutional law.

The breakthrough case was Romer v. Evans (1996), in which Justice Kennedy, writing for a majority of six, invalidated a popular referendum amending Colorado’s constitution that would have prohibited affirmative-action status for homosexuals. Citing no evidence but invoking Moreno, the Court concluded that the amendment’s only purpose must have been to harm and stigmatize. (That the Court made this finding after upholding the criminalization of homosexual conduct only ten years earlier was not lost on Justice Antonin Scalia in his strong dissent, which also noted that laws against polygamy and animal cruelty might be based on animus as well.) The Court’s bottom line: Mean people spawn bad law.

From there, the state and federal courts proceeded to strip the citizens of their right to self-governance in the area of sexual morals. Down went state laws criminalizing homosexual conduct in 2003. Down went the Defense of Marriage Act in 2013. Down went state laws recognizing only traditional marriage two years later. Justice Kennedy authored all of them. In each case, one or more justices delegitimized the will of the people by accusing them of animus. Eventually, the Court constitutionalized a brand-new definition of marriage, denouncing the historical norm—viz., the American citizens who embraced the norm—as demeaning and stigmatizing.

The author doesn’t congratulate the May 2018 Court for defaming the American people, but he approves of the Court’s insistence on determining whether “animus lurks in a given decision” as a step in determining its constitutionality. Is animus alone a constitutional violation? Should it be? Is a court to favor a destructive legislative policy created out of benevolent motives favorably but strike solid policy tainted by a willingness to demonize someone? What kind of society would result? And what kind of nonsense is all this?

Furthermore, negotiating animus doctrine will be tricky. Now that the Court has weaponized its animus doctrine, the importance of victim status in our society becomes clear. Taken to its logical end, if anyone can be a victim, then anyone can defeat legislation affecting one’s behavior by claiming animus. The key is to find material in the record, or even circulating generally, suggesting that one might be a victim of someone’s hostility, an easy task in the age of social media. A sympathetic court will take care of the rest.

When the author looks to the future ap- plicability of animus doctrine, he predicts its further utility in improving the status of sexual minorities and rights involving abortion. Though the author doesn’t men- tion them, homosexual advocates are cur- rently challenging two policies that they claim stigmatize them. One bars homo- sexual men from giving blood. The oth- er criminalizes the failure of the HIV-in- fected to disclose that fact before a sexual encounter. The value system underlying animus doctrine as applied to these cases would force unwilling patients to receive blood from homosexual men as a matter of constitutional law, and the diseased would have a constitutional right to infect.

What the author misses is the incompatibility of First Amendment and Fourth Amendment animus doctrines. Masterpiece Cakeshop might present some entertainment in how the Court paints itself out of the rhetorical corner that it painted itself into more than 20 years ago. Obviously, in 1992, the people of Colorado had sensed the formative stages of collaboration between the courts and the homosexual community. With Amendment 2, the referendum addressed in Romer, they sought to protect themselves from a future, for ex- ample, of government-mandated personal-services contracts requiring unwilling bakers to cater homosexual weddings. The Court struck down Amendment 2 based on animus doctrine. Obviously, the legal issue in Masterpiece Cakeshop involving religious animus would not even exist if Romer had allowed Amendment 2 to stand. So now the shoe is on the other foot. Now Justice Kennedy is recognizing that the small number of devoutly religious Christians are the ones whom society is demonizing. Perhaps they deserve the same constitutional protections as Santerian animal sacrificers, and perhaps not. So who will win the contest for most stigmatized? Will homosexuals be able to have their masterpiece cake and eat it, too?

Of course, the Animus Olympics at the Supreme Court are relatively unimportant given the Fourth Circuit’s holding prohibiting the country from defending itself if the President utters negative statements about Islam. Imagine! A federal appellate court in Richmond can enjoin the United States from defending her citizens because the President’s words were stigmatizing. Maybe a constitutional convention is not the worst idea in the world.

Despite these inadequacies, though, Professor Araiza has provided a valuable service in revealing the history and motivations associated with the animus doctrine, for, as the Washington Post says, “Democracy dies in darkness.” And as the United States Supreme Court might add, “Good riddance.” 


[Animus: A Short Introduction to Bias in the Law, by William D. Araiza (New York: New York University Press) 224 pp., $25.00]