Professor William Araiza Leads Timely Discussion of his Recent Book on Animus in the Law

In his latest book, Animus: A Short Introduction to Bias in the Law (NYU Press 2017), Professor William D. Araiza examines the Supreme Court’s emerging animus doctrine. Animus refers to a legislative purpose that focuses not on the public good, but instead toward a faction’s private interest (such as disapproval of a particular group). As Professor Araiza explains, animus-based actions are per se unconstitutional. The book explores how the doctrine can apply to new cases where plaintiffs allege animus and connects modern constitutional law to its earliest roots in 19th century class legislation.

Professor Araiza was joined by other constitutional law faculty, including Professors Joel Gora, Susan Herman, and K. Sabeel Rahman, and Doni Gewirtzman, Professor of Law at New York Law School and Adjunct Professor at the Law School, on Feb. 6, for a timely and engaging panel discussion about the book and concept of animus. Dean Nick Allard welcomed a packed crowd of alumni, students and faculty, describing the book as “an elegant, slim volume—one of those law books that comes around every so often that teaches and provokes you in very important ways.”

“This really is the book of the moment,” said Rahman, noting the rise of xenophobia. He cited the Trump administration’s travel ban and tightening of immigration laws as forms of animus.

Gora said the book prompted him to rethink his teaching of constitutional law and modify a tiered chart he uses to help students analyze equal protection. “Bill’s book has convinced me that animus has to be its own tier at the very top,” he said.

Araiza, a widely published expert on constitutional law, said he was inspired to write the book by a series of Supreme Court cases where the court relied on the idea that government action cannot be motivated by so-called ‘bad motivations,’ or animus. “It is a deeply fundamental concept in American constitutional law, but difficult to translate into workable legal doctrine,” he said.

“Animus cases are nearly impossible to reconcile with existing precedent under rational basis scrutiny – which is frustrating,” said Gewirtzman. “I am thankful for your effort to theorize all of this and make it coherent.”

Herman, president of the ACLU, said she believed Araiza actually had created a new doctrine by writing the book. “It’s amazing to me that Bill had the vision to write this book. For years I’ve taught cases of equal protection that don’t fit a particular doctrine. Animus references have been ad hoc. I think Bill has woven together a theory of how animus makes sense.”

Araiza also made what he called a “fearless prediction” about the outcome of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which centers on whether a creative business, in this case a baker, can refuse service to a gay couple based on First Amendment rights of free speech and free exercise of religion.

“Animus may be working in both directions in this case, which makes it really tough, but I see a scenario in which everyone wins,” said Araiza, pointing to Justice Kennedy’s opinion in Obergefell v. Hodges, where Kennedy went out of his way to say that opponents of same-sex marriage are not motivated by anything he would consider animus.

“With Justice Kennedy—likely the swing vote—focused on the alleged bias of a member of the Colorado Civil Rights Commission that fined the baker, I could easily see a ruling in favor of the baker on the ground that the Commission’s decision was tainted by animus targeting the baker’s religious beliefs,” said Araiza. “The remedy will be the Commission has to do it all over again, without the biased member as part of the decision. Everyone wins. The baker wins, and Justice Kennedy is able to say he kept his promise in Obergefell. Then he can turn around and say that if the Civil Rights Commission reaches the same decision through an untainted process, there is no problem and the baker can be forced to sell the cake to the gay couple.”

Read more about Professor Araiza’s scholarship on animus in the law here.
Hear Professor Araiza talk about his inspiration for the book here.