Some Reflections on Animus and “Adjudicatory Bodies”

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of “animus” might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who “objected to a requested cake on the basis of conscience” (this was said by the Court to be an “indication of hostility” to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips’ religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting “animus”: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading “seems more likely.” I really don’t understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to “compromise.” Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner’s comments were hateful? I wonder if the Court’s approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of “adjudicatory bodies.” In describing the state of jurisprudential play with respect to “animus” evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the “animus” discussion. Indeed, the “animus” discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with “lawmakers” while this case deals with the “very different context” of “adjudicatory bod[ies] deciding a particular case.” It is true that in the following section of the opinion, the language about “adjudicatory bodies” does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that “the government’s” “neutrality” may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case–the Commission–does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of “animus” analysis that did not get a majority in Lukumi, but only when one is dealing with “adjudicatory bodies deciding a particular case.”

If that reading is right (and it of course may not be), what could explain a new, special animus rule for “adjudicatory bodies”? Admittedly this is speculation, and I don’t have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis–its susceptibility to manipulation, for example–those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We’ll see how, if at all, the “adjudicatory bodies” language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.

4 responses

  1. I appear to be less troubled by animus in the legislative/adjudicative process distinction. I took the comment to mean that it’s one thing for a member of a legislature to express animus, but it’s entirely a different matter for a judge to do so. Thus, while one member of Congress might express hostility to Christians in his comments on the floor when debating a piece of legislation, that animus may insignificant, even though troubling, if the ultimate legislation itself does not reflect that animus. However, as you say, when a judge or commissioner deciding a specific claim expresses bias, there is an entirely different impact.

    Put another way, I don’t mind if my local congressman hates me, as long as his hatred is not institutionalised in the end result of legislation. I do mind if the judge hearing my civil rights claim does.

    Am I being too facile?

    Liked by 1 person

  2. Thank you for the comment. I’m not necessarily troubled by it either. But I do think while there are salient distinctions between legislators and adjudicators, they are not clear cut. For example, you say that while one member of Congress may express hostility toward Christians, the legislation as enacted may not reflect that hostility. The same could be true of the adjudicatory body at issue here–a civil rights commission. It may also be true of the appellate decision affirming the decision of the civil rights commission. In other words, the diffusion of the animus may occur in both sorts of bodies, depending on the the constitution of those bodies and the ways in which they go about their business.

    Liked by 1 person

  3. Agreed.

    I guess I was suggesting that the animus might be diffused more in a legislative setting.

    I suppose I was thinking of a situation where 1 or 2 members of the legislature might express animus but their impact is not significant. 1 or 2 members of a court or commission is a different story.

    Facile but something like this: 1 member of the legislature is not the legislature, but 1 member of a three-judge panel is.

    Liked by 1 person

  4. You might be right. But note that here, the commission was made up of 7 members. Some legislatures (local legislatures, e.g.) may not be much larger than that. There’s no need to assume Congress as the model. And note also that here there were several tiers of adjudicative body that were scrutinized by the Court. Not just the Commissioners, but the subsequent appellate courts. It was relevant to the Supreme Court that those higher level adjudicative bodies did not disavow the comments of 1, or at most 2, of the 7 members of the Commission. That’s a kind of diffusion (multiple tiers) that one doesn’t see in the legislature.

    Liked by 1 person

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