The Sixth Circuit has identified [an] expanded list of factors that can be used to detect whether state action was motivated by a discriminatory purpose: (1) the impact of the official action on the group challenging the classification; (2) the historical background of the challenged decision, especially if it reveals numerous actions being taken for discriminatory purposes, (3) the sequence of events that preceded the state action, (4) procedural or substantive departures from the government’s normal procedural process, and (5) the legislative or administrative history. Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 369 (6th Cir. 2002) (citing Village of Arlington Heights, 429 U.S. at 266-68).
This list of objective considerations comes from cases in which plaintiffs claim some racially disparate impact in a law that is nevertheless racially neutral on its face. In such cases, the Supreme Court has required plaintiffs to show that the government was motivated by an impermissible racial purpose. That impermissible purpose can detected, in turn, by looking at the objective indicators of an impermissible purpose, like statements of legislators, unusual departures from usual practice, a history of discrimination, etc.
The list of objective factors to sniff out an impermissible racial purpose mirrors closely the objective factors in the Supreme Court’s animus quadrilogy, in which the Court looks for an impermissible animus-based (as opposed to race-based) purpose to demean or to injure an unpopular group. The list of such indicia of animus includes: (1) considerations of statutory text (textual); (2) the political and legal context of passage, including a historical background demonstrating past discriminatory acts, and a departure from the usual substantive considerations governing the decision (contextual); (3) the legislative proceedings, including evidence of animus that can be gleaned from the sequence of events that led to passage, the legislative procedure, and the legislative history (procedural); (4) the law’s harsh real-world impact or effects (effectual); and (5) the utter failure of alternative explanations to offer legitimate ends along with means that really advance those ends (pretextual).
The Sixth Circuit did not consider these factors from the disparate-racial-impact cases or from the Court’s animus quadrilogy in its DeBoer decision.
Moreover, contrary to the Sixth Circuit’s analysis treating animus as merely a species of ordinary rational-basis review, the animus inquiry does not end when the state brings forward one or more slender but conceivably rational justifications for its law targeting a class. Once animus is found to be a motivating factor (not the sole factor or even the dominant factor) behind the law, as the district court recognized, the analysis is over. The law, as I have characterized it, is “tainted” by animus and is unconstitutional. (See also Professor Susannah Pollvogt’s analysis of the decisive role of animus here.)
In an animus case, the existence of hypothesized and imaginable rationalizations that would support a law in the usual rational-basis case won’t cut it. That is the lesson of the entire animus quadrilogy, in which justifications that would ordinarily support constitutionality failed to save the laws targeting a class, even if the classification itself wasn’t a “suspect” one. Consider the cited cost-saving and anti-fraud justifications for excluding non-traditional households from the food stamp program in Moreno; the safety concerns for residents of a home for the cognitively disabled that were relied upon in Cleburne; the freedom-of-association interests and resource-conservation preferences offered for excluding homosexuals from specific anti-discrimination protections in Romer; and a host of possible justifications, including fears of judicial activism, used by Congress to justify the exclusion of married same-sex couples from all marital benefits in Windsor. Any of these threadbare justifications would likely have sufficed in a standard rational-basis case, as opponents tirelessly pointed out, and as they continue to do today in support of excluding same-sex couples from marriage. But they don’t suffice in an animus case, where the usual rational-basis deference to government exclusion of an unpopular class is inoperative.
Admittedly, the animus inquiry was somewhat more straightforward in today’s Bassett decision than it was in DeBoer. As the district court noted, Michigan has always been a strong “home rule” state, meaning that localities were traditionally entrusted with deciding important benefits and anti-discrimination protections for their own employees. The anti-domestic-partners law departed abruptly from this usual practice for gay couples and for them alone, which itself is an “unusual discrimination” that triggers suspicion of animus, as it did for different reasons in Romer (the unprecedented scope of Colorado’s anti-gay law) and in Windsor (Congress’s departure from the usual federalism-based practice of deferring to states’ own definitions of marriage).
When such unusual discrimination is placed in the context of a long history of anti-gay discrimination in the law, a legacy the Sixth Circuit itself recognized in DeBoer, it strengthens the inference that the law was rooted in prejudice and unthinking stereotypes about same-sex couples.
Finally, none of the purported rationales supporting the total exclusion of same-sex domestic partners from health and other benefits were creditable. Even the supposed cost savings were unsupported and illusory, which would not be a problem in an ordinary rational-basis case but is a problem where animus has already been detected. Thin justifications quickly start to look pretextual, as mere covers for ill will, when animus is afoot.
The equal-protection animus analysis is more complicated in DeBoer in some respects. There is not the same kind of unusual departure from a historical practice in recognizing only opposite-sex marriages as there is in stripping localities of home rule for the purpose of excluding same-sex couples alone from all benefits. But the challenged constitutional amendments in the DeBoer case were unusual departures from regulation of family law because they constitutionalized marital definitions for the first time. To what end? That unusual act of constitutionalizing the issue, combined with other indicia of animus (including the universally recognized history of anti-gay discrimination in the states), cannot be saved by pointing to whatever makeweight and tenuous rationalizations (like promoting “responsible procreation” among opposite-sex couples) that a state might now offer to target gay couples for exclusion from marriage.
Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attack based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state “mini-DOMAs” that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider. The heightened attention to animus in the very Circuit from which the marriage cases will likely come to the Court raises the possibility that animus analysis will play at least some role in the ultimate outcome.