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Unpublished Paper
Animus and Marriage Equality
ExpressO (2013)
  • Susannah W Pollvogt

Many scholars have speculated about the approach the United States Supreme Court might take in the marriage equality cases currently on its docket. One option that is underexplored is that the Court may revive and rationalize the doctrine of unconstitutional animus. Dormant since the 1996 decision in Romer v. Evans, the doctrine of unconstitutional animus has made only fleeting appearances in the Court’s equal protection jurisprudence, and when it has appeared, it has taken on a distinct incarnation in every instance. For this reason, both scholars and practitioners consider the doctrine to be ill-defined and unreliable. Nonetheless, the doctrine of animus had played a critical role in the cases where it has been invoked, namely by providing equal protection plaintiffs with a path to victory under deferential rational basis review—a standard that is typically the death knell for plaintiffs’ claims. There is good reason to believe that the doctrine of unconstitutional animus may come into play in the Perry and Windsor decisions. Accordingly, this essay examines (1) the various ways the Court might arrive at rational basis review, which would make application of the doctrine of animus critical; (2) the divergent understandings of the doctrine currently reflected in the Court’s precedent; and (3) how these divergent understandings would play out not only in the current marriage equality challenges, but in other types of marriage regimes in the United States.

  • Equal Protection,
  • animus,
  • same-sex marriage,
  • marriage equality
Publication Date
Citation Information
___ Columbia L. Rev. Sidebar ___ (forthcoming 2013).