Animus and Marriage Equality
Speaker: Susannah W. Pollvogt, Adjunct Professor, University of Denver Sturm College of Law
Wednesday, April 17, 2013
UCLA Law, Room 1314
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.
Susannah Pollvogt has taught seminar on marriage equality at the University of Denver Sturm College of Law, and also at the University of California, Irvine, School of Law. Pollvogt’s scholarship focuses on doctrinal and theoretical dilemmas in contemporary equal protection jurisprudence. In the past year, she has published articles on the law of equal protection in the Fordham Law Review, Stanford Law Review Online, Maryland Law Review‘s online component, End Notes, and Fordham Law Review‘s online component, Res Gestae.
In addition, Susannah and her colleagues, Catherine Smith and Tanya Washington, filed an amicus brief in United States v. Windsor, focusing on the manner in which the Defense of Marriage Act impermissibly punishes children based on moral disapproval of their parents. Prior to beginning her teaching career, Susannah specialized in appellate practice, working for the Denver-based law firm of Holland & Hart, the Vermont Supreme Court, and the Tenth Circuit Court of Appeals. Susannah is currently teaching a judicial clerkship seminar, based on Hollingsworth v. Perry, as an adjunct at DU Law.