According to the Supreme Court in United States v. Windsor, the Defense of Marriage Act violated equal protection because it reflected animus against married same-sex couples. Windsor was the latest installment in what I have called an animus quadrilogy—four major decisions invalidating government action that go back four decades. It may be the sleeper issue in the upcoming marriage challenges at the Supreme Court.
But what is animus, why is it constitutionally problematic, how does the Court determine when it’s present, and what happens next? This week Balkinization is hosting a symposium on the issue of unconstitutional animus. Participants include Susannah Pollvogt (Washburn), Neil Siegel (Duke), William Araiza (Brooklyn), Russell Robinson (Berkeley), Justin Marceau (Denver), and me.