ORCID (Links to author’s additional scholarship at ORCID.org)
Hatred is as old as our civilization. So is the moral principle that one should not hate others and should not act on such hatred. Concerns that an angry or fearful majority might nevertheless treat people maliciously were present both at the beginning of our constitutional Republic and in its most divided epoch. The very structure of our government—dividing and separating powers—and our most hallowed egalitarian principle—Equal Protection of the Laws—were seen as safeguards against decisions driven by a “bare . . . desire to harm.” Such decisions are blasphemy in our legal heritage. Half a century ago, the Supreme Court put a name to that blasphemy— “animus”—for the first time. Animus doctrine as an independent constitutional force gathered strength and coherence over the next forty years.
In this Article, the author explores the major developments in animus doctrine over the past decade. The first Part reviews the origins, justification, and key characteristics of animus analysis. The second Part deals with cases analyzing animus-based claims from the Supreme Court and decisions from circuit and district courts that were either decided squarely on animus grounds or involved substantive discussions of animus doctrine. Those decisions have not usefully elaborated the doctrine, although they have also not completely abandoned it. Federal courts have still not developed a systematic approach to animus. The third Part presents several scholarly treatments of animus on both the conservative and progressive sides.
Alabama Law Review
Animus doctrine, Unconstitutional animus, Constitutional law, Equal protection, Equality before the law, Supreme Court, Constitutional history, United States v. Windsor, Romer v. Evans, Trump v. Hawaii, Department of Homeland Security v. Regents of the University of California, Masterpiece Cakeshop
Dale Carpenter, The Dead End of Animus Doctrine, 74 ALA. L. REV. 585 (2023)