Question to US lawtalkers

[Martinus]

First of all, let me preface by saying that the concept of "animus" being used to strike down some law as unconstitutional is really alien to continental legal systems. So my question is - can animus alone be used to strike the law down, when it is not objectively discriminatory or otherwise expressly unconstitutional?

For example, in the ID card controversy, the left often shows the spot of some Republican dude saying that changing the voting laws will give victory to Romney. But the law itself does not strike me as discriminatory or unconstitutional on its own - so can this spot alone be used to attack it?

[CountDeMoney]

But the law itself does not strike me as discriminatory or unconstitutional on its own -

That's because you're European;  the constitutionality of "fundamental rights" is alien to you.

[The Minsky Moment]

Marti - not sure what you are referring to - is there some particularly ruling or US constitutional doctrine that is being referenced?  A party TV spot has no bearing on constitutional law.

[ulmont]

First of all, let me preface by saying that the concept of "animus" being used to strike down some law as unconstitutional is really alien to continental legal systems. So my question is - can animus alone be used to strike the law down, when it is not objectively discriminatory or otherwise expressly unconstitutional?

For example, in the ID card controversy, the left often shows the spot of some Republican dude saying that changing the voting laws will give victory to Romney. But the law itself does not strike me as discriminatory or unconstitutional on its own - so can this spot alone be used to attack it?

The first circuit court of appeals laid it out pretty well in their DOMA opinion, at 13-18:
http://www.ca1.uscourts.gov/pdf.opinions/10-2204P-01A.pdf

An equal protection claim is generally (all discussion below is oversimplified) reviewed using one of 3 types of scrutiny, based on how the discrimination kicks in or what rights are impacted:

1) Strict scrutiny.  This standard is applied when a government is discriminating based on race, national origin, or religion; or where the government is impacting a fundamental right, such as free speech.  This standard is almost impossible for the government to meet, as it requires that the law (i) be justified by a compelling governmental interest, (ii) narrowly tailored to achieve the government's goal; and (iii) be the least restrictive means to achieve that goal.

2) Intermediate scrutiny.  Applied when the government discriminates based on sex, illegitimate birth, or (at least one court has ruled), homosexuality.  The government's action must  (i)  further an important government interest and (ii) in a way that is substantially related to that interest.

3) Rational basis.  Applied for everything else.  The action must be (i) rationally related to a (ii) legitimate government interest.

Back to animus.  Animus is not a legitimate governmental interest.  Further, where courts find that animus motivated an action, they will apply something higher than rational basis review.  Additionally, the courts will look at the actual effect of the law in practice, rather than the simple text, to see if the law is discriminatory etc.

So, animus is not by itself a loser, but tends to show that the government has no rational reason for the law; and laws which are discriminatory in effect may be struck down depending on their relationship or lack thereof to legitimate governmental goals.

Marti - not sure what you are referring to - is there some particularly ruling or US constitutional doctrine that is being referenced?  A party TV spot has no bearing on constitutional law.

Minsky, I assume Martinus was referred to what we've seen in the recent DOMA opinions and some prior opinions, where  motivation of lawmakers to harm or punish an unpopular group was used to ratchet up scrutiny somewhat.

[The Minsky Moment]

Minsky, I assume Martinus was referred to what we've seen in the recent DOMA opinions and some prior opinions, where  motivation of lawmakers to harm or punish an unpopular group was used to ratchet up scrutiny somewhat.

The Reinhadt Prop 8 opinion, despite its controversy, didn't actually do that - it applied normal rational basis review and just didn't find any legit state interest.  The fact that animus is not a rational basis is well-established law and common sense.  The recent Cal decision on DOMA does the same thing.

The first circuit case you cite does openly apply a firmer scrutiny standard, but not based on animus - rather on historical "discrepant" treatment and federal intervention into traditional state responsibilities.

[ulmont]

The Reinhadt Prop 8 opinion, despite its controversy, didn't actually do that - it applied normal rational basis review and just didn't find any legit state interest.  The fact that animus is not a rational basis is well-established law and common sense.  The recent Cal decision on DOMA does the same thing.

The Reinhardt Prop 8 opinion extensively cites Romer (in particular at 42-48), and notes (at 43) that the inference of animus results in an equal protection problem, unless a further legitimate reason can be found.

The first circuit case you cite does openly apply a firmer scrutiny standard, but not based on animus - rather on historical "discrepant" treatment and federal intervention into traditional state responsibilities.

The "discrepant" treatment is animus.  In the two first cited examples, the "discrepant" treatment is specifically called out as motivated by negative attitudes towards the group.

The SCOTUS Romer decision and the 1st circuit DOMA opinion were the ones I was looking at in particular.

[The Minsky Moment]

The Reinhardt Prop 8 opinion extensively cites Romer (in particular at 42-48), and notes (at 43) that the inference of animus results in an equal protection problem, unless a further legitimate reason can be found.

All he (and Romer) says is that laws enacted solely on the basis of animus and that single out a class cannot be sustained in the absence of some other rational justificaiton.  That is well-established law and fits regular rational basis review.

The "discrepant" treatment is animus.  In the two first cited examples, the "discrepant" treatment is specifically called out as motivated by negative attitudes towards the group.

the point made is not that animus generally requires higher review.  The point is that where there is long-standing historical mistreatment of a particular class, the court should be more probing in looking at the justifications.  While it is dubious that this is correct application of Supreme Court precedent, it is different from saying the existence of animus as an intent behind of particular law automatically creates higher scrunity.

The reality is that all these courts are just pussy-footing around the real issue  - that as a matter of common sense, sexual preference should be treated under an intermediate scrutiny rubric - but the Supreme Court is behind the ball as usual.