The expressive dimension of equal protection

Minnesota Law Review

Volumn 85, Issue 1, 2000, Pages 1-68

  Hellman, Deborah ^a,b,c,d  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

^b DARTMOUTH COLLEGE   (United States)

^c Och Spine at New York Presbyterian Hospitals   (United States)

^d HARVARD LAW SCHOOL   (United States)

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EID: 0042331322     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (301)

1. For the most influential defense of this process-based understanding of Equal Protection, see JOHN HART ELY, DEMOCRACY AND DISTRUST 136-45 (1980).
2. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 13 (1989) (arguing that judges deciding cases under the Equal Protection Clause ought to ask whether their decisions will "perpetuate the exclusion of groups from equal citizenship");
3. ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 57-114 (1998).
4. 426 U.S. 229 (1976).
5. See, e.g., Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 STAN. L. REV. 1105, 1105 (1989) (describing the reaction of commentators to Washington v. Davis in this way: "All agree, however, that current doctrine makes intent the key to equal protection."). In Washington, the Supreme Court rejected the claim that the fact that a greater percentage of black applicants than white applicants failed the standardized test used by the District of Columbia in screening police recruits was sufficient to sustain a prima facie violation of the Fifth Amendment's Due Process Clause. 426 U.S. at 238-39. In explaining the Court's holding, Justice White characterized the requirement of invidious intent as central to the constitutional claim of wrongful discrimination: "[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." Id. at 239. Interestingly, the opinion does not clearly define how invidious intent is conceived. In particular, the text of the opinion could be read to support either the view that the actual subjective intent of legislators is what matters or the view that it is intent, understood objectively, that is important. For example, the Court explains that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Id. at 242. For a discussion of the relationship between subjective intent, objective intent, and expressive character, see infra notes 122-148 and accompanying text. Justice Stevens, in his concurring opinion, notes precisely this ambiguity. See Washington, 426 U.S. at 254 (Stevens, J., concurring) (explaining that "the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume").
6. Charles Black is not the first to articulate that it is the expressive character of state action that is most important to assessing its constitutional permissibility. As early as 1879 in Strauder v. West Virginia, the Supreme Court recognized that a law which forbids blacks from jury service violates Equal Protection because it is "practically a brand upon them." 100 U.S. 303, 308 (1879).
7. See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960).
8. 347 U.S. 483 (1954).
9. See infra Part II.E.
10. Black, supra note 6, at 427.
11. At the suggestion of Richard Pildes, I have largely abandoned use of the term "social meaning" in favor of the "expressive dimension" or "expressive character" of a law or policy. While I continue to understand all three terms as synonyms, Pildes has pointed out that "social meaning" is understood by some readers as calling attention to the effects of laws rather than to their expressive character. E-mail from Richard Pildes, Professor, University of Michigan Law School, to Deborah Hellman, Associate Professor, University of Maryland School of Law. This confusion is understandable because Lawrence Lessig has used the term "social meaning" in an article focusing on how laws play a role in the creation of social norms. See Lawrence Lessig, The Regulation of Social Meaning, 62 UNIV. OF CHI. L. REV. 943, 951 (1995). This Article uses the terms "meaning" (by itself), "expressive character," or "expressive dimension" to indicate what a law or policy expresses.
12. E.g., Sheila Foster, Intent and Incoherence, 72 TUL. L. REV. 1065, 1121-43 (1998) (criticizing the Court's approach to determining intent as incoherent);
13. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 938 (1989) (criticizing throughout "the potentially incoherent nature of the discriminatory intent standard").
14. But see Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1514-27 (2000), for a powerful defense of the conception of group mental state.
15. See Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 980 (1993) (arguing that the intent standard ignores the presence of white race consciousness);
16. Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987) (arguing that the intent standard ignores the "unconscious racism" that is often the cause of wrongful discrimination).
17. This concept is well-rooted in tort and criminal law. See, e.g., DAN B. DOBBS ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 28, at 161 (5th ed. 1988) ("Intentional injuries, whether direct or indirect, began to be grouped as a distinct field of liability, and negligence remained as the main basis for unintended torts. Negligence thus developed into the dominant cause of action for accidental injury in this nation today.") (footnotes omitted);
18. ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 858 (3d ed. 1982) (explaining that "[t]he fact that malice does not require an actual intent to cause the actus reus has been well understood").
19. See Todd Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-C.L. L. REV. 63, 76 (1994) (arguing that "[w]e are not really that interested in whether our officials have good or bad souls - certainly not so interested as to make that question our touchstone for the 'equal protection of the laws'").
20. Strauss, supra note 11, at 939 (arguing that the Court adopted a discriminatory intent standard despite its obvious shortcomings because of its concern that alternatives that focused on the effect of state action - like the stigma and anti-subordination conceptions of the Equal Protection - would be "far too threatening to established institutions").
21. Of course not everyone thinks these effect-based conceptions are in fact over-reaching. Two prominent, well-conceived examples are Kenneth Karst and Andrew Koppelman. See Kenneth L. Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1976); sources cited supra note 2.
22. 347 U.S. 483 (1954).
23. 163 U.S. 537 (1896).
24. 517 U.S. 620 (1996).
25. JOHN RAWLS, A THEORY OF JUSTICE 46-53 (1972).
26. Id. at 47.
27. NELSON GOODMAN, FACT, FICTION, AND FORECAST 64 (4th ed. 1983).
28. U.S. CONST. amend. XIV, § 1.
29. Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND PREFERENTIAL TREATMENT 85-88 (Marshall Cohen et al. eds., 1977).
30. Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL'Y 24, 24 (1983).
31. Id. at 31. Jeremy Waldron calls our attention to the fact that the commitment to the equal worth of all human beings that underlies moral argumentation needs elaboration and clarification. In an essay, he seeks to understand to what we in fact commit ourselves in taking this position as the basis for moral claims. See Jeremy Waldron, Basic Equality: An Undifferentiated Human Range, in Two ESSAYS ON BASIC EQUALITY (1999), at http://www.law.nyu.edu/clppt/orginalpapers/waldron.doc (last visited Sept. 9, 2000).
32. Dworkin employs this thesis in working out how Hercules would analyze cases of racial discrimination. See RONALD DWORKIN, LAW'S EMPIRE 381-99 (1986).
33. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
34. Id. at 494 (quoting Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951)).
35. Id.
36. Id. at 493.
37. Id.
38. Id. at 495.
39. In cases following Brown v. Board of Education, courts treated de jure segregation as unconstitutional without discussion. E.g., Sch. Bd. v. Allen, 240 F.2d 59, 60-62 (4th Cir. 1956); Jackson v. Rawdon, 235 F.2d 93, 96 (5th Cir. 1956); Clemons v. Bd. of Educ., 228 F.2d 853, 856 (6th Cir. 1956); Romero v. Weakley, 226 F.2d 399, 400-01 (9th Cir. 1955).
40. But see Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that the denial of a free public education to illegal aliens violates Equal Protection under rational basis review). Plyler demonstrates that the Court can subject classifications that affect education to extra scrutiny without finding that education is in fact a fundamental right.
41. 163 U.S. 537 (1896).
42. Id. at 550-51.
43. Id. at 551.
44. Of course the meaning of language does change over time and often because small groups of people adopt a difference usage for a term. But it does so very gradually. When the pace is relatively quick, this is often because of a concerted social movement to consciously affect the meaning of a term. Interestingly, civil rights movements often try to change language first as a means to change status. "African-American" replaces "black" which replaced "colored" as the social status of the group advanced. "He and she" replaces the allegedly gender-neutral "he" as women gain power. Changing the social meaning of a practice rather than of one word or term is probably even more difficult. Gay pride marches are a good example of an attempt to do just this. Clearly it is not an easy task.
45. Plessy, 163 U.S. at 560 (Harlan, J., dissenting) (emphasis added).
46. Lawrence Lessig uses the term "social meaning" in an article addressing the ways in which governments unavoidably participate in the creation of that meaning in order to emphasize that the meanings of practices are culturally dependent. Lessig, supra note 10. As Lessig notes, there is nothing deep or controversial about the term "social meaning" as opposed to simply "meaning." Id. at 951-52. Rather he uses it "not to distinguish social meaning from individual meaning (whatever that would be), or meaning more generally, but rather to emphasize its contingency on a particular society or group or community within which social meanings occur." Id.
47. 163 U.S. at 551.
48. See id. at 560 (Harlan, J., dissenting).
49. This objection was suggested to me by Todd Rakoff. E-mail from Todd Rakoff, Professor, Harvard Law School, to Deborah Hellman, Associate Professor, University of Maryland School of Law.
50. See, e.g., ROBERT HUGHES, THE CULTURE OF COMPLAINT (1993).
51. 388 U.S. 1 (1967).
52. Id. at 7.
53. Id. at 11-12 n.11. The scope of this particular antimiscegenation statute made its noxious meaning exceptionally obvious, but if Virginia had forbidden any marriages between men and women of different races, that too would have violated Equal Protection because the meaning of such a law in Virginia at that time would also have been one of racial superiority of whites over non-white races. In other words, facial neutrality doesn't ensure that a law's meaning will be unproblematic. Cultural practices contribute to the objective meaning of laws.
54. On reflection, the social meaning of this practice does raise some equal protection concerns, but not of sex discrimination. The social meaning of this practice is surely that heterosexuality is the norm. Whether this social meaning merely points to the relative frequency of each sexual orientation or instead expresses the view that heterosexuality is better or preferred is an interpretive question that requires further thought.
55. 78 F.3d 932 (5th Cir. 1996).
56. Id. at 944, 955.
57. Deborah Hellman, Two Types of Discrimination: The Familiar and the Forgotten, 86 CAL. L. REV. 315 (1998). In that article I draw a distinction between "proxy" and "non-proxy" discrimination. In proxy discrimination, a law or policy picks out people with one trait in order to reach people with a different correlated trait. Id. at 317-18. In non-proxy discrimination, the law picks out people with a particular trait in order to reach precisely those people. Id. at 318-19. For example, if a law firm were to prefer men to women as associates because the firm partners believe that women are generally less aggressive than men, this is proxy discrimination. Sex is used as a proxy for aggressiveness. In contrast, single-sex education is an instance of non-proxy discrimination. The school admits only women in order to have a class of women only. The article goes on to argue that current Equal Protection doctrine is geared to handle instance of proxy discrimination only. As a result, when faced with a case of non-proxy discrimination, courts are doctrinally ill-equipped. Id. at 328-38.
58. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 505-09 (1989) (finding that a set-aside program for minority contractors was not narrowly tailored to remedy past discrimination because no such discrimination had existed in the Richmond construction industry); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality opinion) (invalidating a school policy awarding unbalanced protection against layoffs to minority teachers on the grounds that there was not "sufficient evidence to justify the conclusion that there had been prior discrimination").
59. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 316-18 (1978) (discussing with approval Harvard College's use of race as a plus factor in admissions).
60. Richard Pildes & Richard Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 500-01 (1993).
61. 509 U.S. 630 (1993); see infra Part II.D.
62. Pildes and Niemi argue: For the Court, what distinguishes "bizarre" race-conscious districts is the signal they send out that, to government officials, race has become paramount and dwarfed all other, traditionally relevant criteria. This view is the foundation of the qualitative distinction central to Shaw: at a certain point, the use of race can amount to value reductionism that creates the social impression that one legitimate value has come to dominate all others. Pildes & Niemi, supra note 55, at 501.
63. Id.
64. Pildes and Niemi argue that the reason North Carolina's congressional district violates Equal Protection is analogous to the reason that quotas but not preferences violate Equal Protection in the education context. Id. at 503. Presumably, preferences are permissible where quotas are not because while the concrete effect on applicants may be similar, the message conveyed is not. As I understand this view, quotas express that race is the decisive factor; preferences express that race is one factor among many. See id. But what is constitutionally problematic about expressing that race is decisive for a set number of applicants? Quotas express that because race continues to matter in our society, a state must ensure that it educates members of each racial group. While this approach to the continued relevance of race in society may not be wise (I make no claim either way), this expressive content does not conflict with the government's obligation to treat each of us with equal concern.
65. See GEORGIA WARNKE, JUSTICE AND INTERPRETATION 38-61 (1993).
66. JOHN RAWLS, POLITICAL LIBERALISM (1993). Rawls describes the project this way: "[H]ow is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?" Id. at 4. Rawls assumes three facts about the political culture of democratic societies, the first of which he terms "reasonable pluralism." Id. at 36. By this he means that "the diversity of reasonable comprehensive religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy." Id.
67. Id. at 10.
68. WARNKE, supra note 60, at 42.
69. See Martin Gottlieb, Racial Split at the End, as at the Start, N.Y. TIMES, Oct. 4, 1995, at A1;
70. Richard Morin, Poll Reflects Divisions Over Simpson Case: Trial Damaged Image of Courts, Races Agree, WASH. POST, Oct. 8, 1995, at A31. A Washington Post survey found that the majority of whites disagreed with the verdict while a majority of African-Americans agreed with it. Id.
71. See Ernest Tollerson, Blacks View Simpson Case in Context of the Past, N.Y. TIMES, Oct. 10, 1995, at A14 (reporting that many blacks see Simpson as "a black man who managed to survive his passage through a rigged system of criminal justice");
72. Reaction to O.J. Verdict Exposes Chasm Between Blacks, Whites, SUN-SENTINEL (Fort Lauderdale, Fla.), Oct. 8, 1995, LEXIS, News Library, Sunsen File (reporting that "[t]his time, blacks are saving, . . . a black defendant could play the game, countering expert with expert. A system devised, implemented and enforced primarily by whites worked as it should this time - regardless of race - and it was, said those rejoicing, a moment to savor and celebrate").
73. See Reaction to O.J. Verdict Exposes Chasm Between Blacks, Whites, supra note 65 (reporting that many interviewees believed the Simpson trial showed racism).
74. When asked about defense lawyer Johnnie L. Cochran, Jr.'s appeal to the jury in his closing argument to send a message about racism with their verdict, 69% of whites thought that race was used inappropriately while 64% of blacks and 47% of Latinos thought this use of race appropriate. Cathleen Decker, The Times Poll: Most in County Disagree with Simpson Verdicts, L.A. TIMES, Oct. 8, 1995, at A1.
75. According to the Atlanta Constitution, "[p]olls in the wake of Simpson's acquittal portray American public opinion fractured along racial lines. Many whites clamor for reforming the jury system; many blacks call for cleaning up police and prosecutors." Jim Yardley, Around the South: Race Matters, ATLANTA CONST., Oct. 15, 1995, at H9.
76. See Decker, supra note 67, at A36. A 1995 Los Angeles Times poll found that women who believed Simpson committed the killings were more likely than men who believed the same to cite Simpson's abuse of Nicole Brown Simpson as their reason for believing that he was guilty of the murder. Id. While women were generally more sympathetic to Simpson than men, they were also more likely to see the murder as a continuation of the domestic violence. Id.; see also Isabel Wilkerson, Whose Side to Take: Women, Outrage And the Verdict on O.J. Simpson, N.Y. TIMES, Oct. 8, 1995, § 4, at 1.
77. DWORKIN, supra note 27, at 230-32.
78. THOMAS NAGEL, THE VIEW FROM NOWHERE 60-66 (1986).
79. See RAWLS, supra note 20, at 17-22, 136-42.
80. Id. at 136. As Rawls explains, "[t]he idea of the original position is to set up a fair procedure so that any principles agreed to will be just." Id.
81. Id. at 137.
82. See, e.g., MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 175-83 (1992).
83. See JURGEN HABERMAS, MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press 1990) (1983).
84. Id. at 43-115. Habermas defends his detailed conditions - of which the above is a rough approximation - on the grounds that they are the assumptions to which all speakers who wish to actually convince others implicitly agree. In his terms, these rules are the "pragmatic presuppositions" of "communicative action." Id. at 69.
85. See, e.g., WARNKE, supra note 60, at 154 (arguing that "from a hermeneutic point of view, there is no reason either to expect a unitary interpretation of any meaning, whether social or textual, or to want one").
86. See Richard Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725 (1998); Pildes & Niemi, supra note 55.
87. See Lawrence, supra note 12.
88. See Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363, 1364 (2000).
89. See Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998).
90. See Michael McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115 (1992).
91. See Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266 (1987).
92. E.g., Adler, supra note 81, at 1438 (Establishment Clause); Raskin, supra note 82, at 635-36 (voting rights).
93. For a more thorough analysis of the pros and cons of these expressivist conceptions of Establishment Clause and voting rights questions, consult the articles cited supra note 85.
94. 465 U.S. 668 (1984).
95. Id. at 692 (O'Connor, J., concurring) (emphasis added).
96. 492 U.S. 573 (1989).
97. Id. at 573.
98. Id. at 597. In Pittsburgh, Allegheny County, the crèche was displayed on the grand staircase of the County Courthouse while the menorah was displayed outside the City-County building and surrounded by a Christmas tree and a sign saluting liberty. Id. at 578. Some readers may find Blackmun's understanding of the meaning of each of these symbolic displays puzzling. Does not a menorah also express that one religious group has a special place in the political community? For the Court, however, the display of the menorah, the tree, and the sign together symbolized the city's recognition of the secular aspects of the holidays as winter festivals and the common theme of light and religious liberty. Id. at 619. I do not intend to weigh in on that question here. What is important for our purposes is that the Court examined the expressive content of the state action in order to assess its constitutional permissibility. The theory readily acknowledges that people will disagree about the best understanding of what particular state actions in fact express. See supra Part II.C.
99. Allegheny, 492 U.S. at 617-18.
100. Id. at 598-99.
101. 509 U.S. 630 (1993).
102. Id. at 658. I mention Shaw in order to point out another area within constitutional law in which the social meaning of governmental action is taken to be significant. While I commend the Shaw Court for attending to the importance of the expressive dimension of state action, I believe that the Court draws the wrong conclusion from that meaning. My theory instructs that only when the meaning that state action expresses conflicts with the principle of equal concern is Equal Protection violated. As I do not believe that the redistricting plan at issue in Shaw sends a message at odds with the equal concern principle, I would uphold the plan as is.
103. Id. at 647.
104. See id. at 646 (arguing that legislators can't help but be aware of race and that "[t]hat sort of race consciousness does not lead inevitably to impermissible race discrimination").
105. Id. at 646-47 (citation omitted).
106. In the two later iterations of Shaw - Shaw v. Hunt, 517 U.S. 899 (1996) [Shaw II], and Hunt v. Cromartie, 526 U.S. 541 (1999) - the Court does seem to back away from the conception of the violation as rooted in what the shape of the district expresses. For example, in Shaw II, Justice Rehnquist's opinion for the Court maintains that "[t]he plaintiff bears the burden of proving the race-based motive and may do so either through 'circumstantial evidence of a district's shape and demographics' or through 'more direct evidence going to legislative purpose.'" 517 U.S. at 905 (quoting Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995)).
107. Pildes & Niemi, supra note 55, at 506. See generally Raskin, supra note 82, for an account critical of the recognition of this expressive harm in Shaw.
108. Pildes & Niemi, supra note 55, at 508.
109. 505 U.S. 833 (1992).
110. 410 U.S. 113 (1973).
111. The plurality instructed that the Court must make sure that overruling in politically sensitive cases can be understood by "the thoughtful part of the Nation" as the Court's "constitutional duty and "not merely as the victories of one doctrinal school over another by dint of numbers." Casey, 505 U.S. at 864.
112. See generally Deborah Hellman, The Importance of Appearing Principled, 37 ARIZ. L. REV. 1107 (1995).
113. See Casey, 505 U.S. at 860-70.
114. Black, supra note 6.
115. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 31-35 (1959).
116. Id. at 34. In fact, Wechsler even goes so far as to endorse the Plessy view: "In the context of a charge that segregation with equal facilities is a denial of equality, is there not a point in Plessy in the statement that if 'enforced separation stamps the colored race with a badge of inferiority' it is solely because its members choose 'to put that construction upon it'?" Id. at 33 (quoting Plessy v. Ferguson, 163 U.S. 537, 551 (1896)).
117. See id. at 33-34.
118. See id. at 9-10.
119. Black, supra note 6, at 427.
120. Id.
121. A survey of law review articles from 1960, when Black's piece was written, until today shows few scholars either adopted or extended his approach. Notable exceptions include those discussed in the text above.
122. Black himself seems to emphasize the importance of improper purpose at times as well. For example, in a well-known passage he writes, [b]ut if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated 'equally,' I think we ought to exercise one of the sovereign prerogatives of philosophers - that of laughter. Black, supra note 6, at 424. Black's article is important because it calls attention to the centrality of social meaning although it admittedly does not further develop that insight into a complete philosophical account.
123. See supra notes 11-14.
124. 131 U. PA. L. REV. 933 (1983). I am grateful to Baker for sending his article to me after I presented an earlier version of this piece at a Legal Theory Workshop at the University of Pennsylvania Law School in March of 1999.
125. Id. at 959.
126. Id.
127. Id.
128. Id.
129. Id. at 973.
130. See id. at 972-73.
131. See id. at 998.
132. Baker cites Michael M. v. Superior Court, 450 U.S. 464 (1981), as an example of a case in which the Court rejects the importance of evidence of subjective intent. Baker, supra note 117, at 979.
133. The cases cited by Baker as evidence for his descriptive claim include Rogers v. Lodge, 458 U.S. 613 (1982), Michael M., 450 U.S. 464, Personnel Administrator v. Feeney, 442 U.S. 256 (1976), and Palmer v. Thompson, 403 U.S. 217 (1971).
134. Baker of course acknowledges this fact. Indeed, his claim is that on balance, objective intent is emerging as the dominant focus in Equal Protection cases. See Baker, supra note 117, at 972-73. As Baker notes, the Court uses several terms that together denote a range from subjective intent to objective meaning: The words 'intent,' 'motive,' 'purpose,' 'meaning,' and 'function' suggest a rough continuum that moves from 'subjective purpose' and an emphasis on mental states to 'objective purpose' and an emphasis on social context." Id. at 973.
135. See, e.g., infra notes 131-135 and accompanying text (discussing Mississippi University for Women v. Hogan).
136. See, e.g., Miller v. Johnson, 515 U.S. 900, 916 (1995) ("The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district."); Hunter v. Underwood, 471 U.S. 222, 227, 229 (1985) (determining whether a criminal statute was enacted with discriminatory intent and noting that "the crimes selected for inclusion in § 182 were believed by the delegates to be more frequently committed by blacks"); Feeney, 442 U.S. at 279 ("'[D]scriminatory purpose'. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects.") (footnotes and citation omitted).
137. See, e.g., Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL RTS. J. 89, 93 (1997) (arguing that "the concept of purpose" is "fundamental to the adjudication of equal protection claims"); Louis S. Raveson, Unmasking the Motives of Government Decisionmakers: A Subpoena for Your Thoughts?, 63 N.C. L. REV. 879, 963 (1985) (discussing whether courts apply objective or subjective standards of intent and noting that "[t]he Supreme Court seems to have articulated a subjective standard of intent"). Some scholars do argue that while the Court expressly endorses adherence to a subjective intent standard, in practice it employs a more complex approach.
138. See, e.g., David Crump, Evidence, Race, Intent, and Evil: The Paradox of Purposelessness in the Constitutional Racial Discrimination Cases, 27 HOFSTRA L. REV. 285, 289 (1998) (arguing that the "concept of discriminatory 'intent' or discriminatory 'purpose' takes on different, shifting meanings in different opinions, and it includes unconscious or accidental discrimination in some cases"); Ortiz, supra note 4, at 1107 (arguing that rather than "regulating the inputs to decisionmaking" - subjective intent - "intent serves . . . as a way of judging substantive outcomes").
139. 458 U.S. 718 (1982). Note that it is again Justice O'Connor who stresses the importance of the expressive dimension of state action.
140. Id. at 724-25.
141. Justice O'Connor explained the problem with the single-sex admissions policy at MUW in this way: "Rather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman's job." Id. at 729. The problem with the policy inheres in what it expresses (nursing is a women's job) not in the actual selective motives of those who enacted the policy. Id.
142. See id. at 735-45 (Powell, J., dissenting).
143. Id. at 743 (Powell, J., dissenting).
144. 471 U.S. 222 (1985).
145. Id. at 227.
146. Id. at 228-29.
147. 517 U.S. 620 (1996).
148. Id. at 635.
149. Id. at 634.
150. Rakoff, supra note 14.
151. See id. at 76-79.
152. Id. at 64.
153. See id. at 71, 79, 81-88, 91-92, 95 (using the term "social meaning"); id. at 84 (using the concepts of objective intent and social meaning interchangeably).
154. See id. at 63.
155. Id. at 79.
156. Id. at 81.
157. But see discussion of Andrew Koppelman's understanding of "objective intent," infra Part III.B.3.
158. 509 U.S. 630 (1993).
159. See Pildes & Niemi, supra note 55, at 507.
160. Anderson & Pildes, supra note 11.
161. See Pildes, supra note 79, at 754-60; Pildes & Niemi, supra note 55, at 506-16.
162. Pildes, supra note 79, at 750.
163. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2209 n.240 (1990).
164. Id.
165. Raskin, supra note 82, at 635-54.
166. Pildes & Niemi, supra note 55.
167. Smith, supra note 84, at 276-312.
168. Adler, supra note 81, at 1462-93.
169. Anderson & Pildes, supra note 11.
170. See Michael Moore, The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 STAN. L. REV. 871, 934-46 (1989).
171. Moore does agree that the judge's attitude toward both statutory and constitutional law is properly interpretive. See id. at 948.
172. See id. at 946.
173. See id. at 947.
174. Id. at 946.
175. Id.
176. See, e.g., John Hart Ely, Standing to Challenge Pro-Minority Gerrymanders, 111 HARV. L. REV. 576 (1997);
177. Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276 (1998);
178. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REV. 635, 650 n.77 (1985) (explaining that "[p]articularized harm has not been required in establishment clause cases"); Pildes & Niemi, supra note 55, at 513-16; Smith, supra note 84, at 297-98 (discussing issues of standing in Establishment and Free Exercise cases);
179. Note, Expressive Harms and Standing, 112 HARV. L. REV. 1313 (1999).
180. See Pamela S. Karlan, Still Hazy After All These Years: Voting Rights in the Posi-Shaw Era, 26 CUMB. L. REV. 287, 310 (1996).
181. Karlan and Samuel Issacharoff emphatically deny this possibility in their insightful article critiquing Ely's conception of standing in voting rights cases. See Issacharoff & Karlan, supra note 168, at 2279.
182. Pildes, supra note 79, at 733.
183. See Lynch v. Donnelly, 465 U.S. 668, 670-71 (1984) (allowing residents of the City of Pawtucket standing to challenge inclusion of a nativity scene in a City sponsored holiday display). Note, however, that the Court did not actually discuss the issue of standing in its decision. It merely granted certiorari and analyzed petitioners' claims on Establishment Clause grounds without questioning their ability to challenge the City's practice. The Court allowed another challenge in County of Allegheny v. ACLU, 492 U.S. 573 (1989). The Court permitted several residents of the County of Allegheny standing to challenge the constitutionality of a crèche in a county courthouse and Chanukah menorah outside a city and county building as unconstitutional under the Establishment Clause. Id. at 589. Again, the Court did not actually discuss the issue of standing itself. Rather, the Court assumed, without discussion, that the plaintiffs had standing to challenge the holiday display.
184. 518 U.S. 515 (1996).
185. 505 U.S. 577 (1992).
186. Id. at 598-99.
187. See supra Part I.C.
188. See Allegheny, 492 U.S. at 578-89; Lynch, 465 U.S. at 671-72.
189. Issacharoff & Karlan, supra note 168, at 2288 (quoting United States v. Hays, 515 U.S. 737, 745 (1995)).
190. Of course even in the redistricting cases, there will be some limitation on standing. Only those voters in the state have standing, because they are the only ones who could have been assigned to the districts subject to the plan.
191. In discussing the ideas presented in this Article with others, I found that similar questions were asked repeatedly.
192. 517 U.S. 620 (1996).
193. U.S. CONST. amend. XIV, § 1.
194. E.g., 38 U.S.C. § 4214 (1994) (noting in subsection (a)(1) that the United States "has an obligation to assist veterans of the Armed Forces in readjusting to civilian life" and advancing the policy of "promot[ing] the maximum of employment and job advancement opportunities [for qualified veterans] within the Federal Government"); see infra note 184 (giving examples of state laws and constitutions establishing veterans' hiring preferences).
195. E.g., COLO. CONST. art. XII, § 15 (authorizing the addition of five points to civil service examinations of veterans achieving passing scores); ARIZ. REV. STAT. § 38-492 (1999) (same); ARK. CODE ANN. § 21-3-302 (Michie 1996) (same); CONN. GEN. STAT. ANN. § 7-415 (West 1999) (same).
196. In the terms I developed in my previous work, these veterans' preferences are instances of "non-proxy" discrimination because the policies do not target veterans in order to reach a group of people with a different trait that is correlated with veteran status (as is the case in proxy-discrimination). Rather the laws target veterans in order to privilege veterans themselves. See Hellman, supra note 52, at 318-19.
197. 442 U.S. 256 (1979).
198. Id. at 275.
199. Id. at 277.
200. Id.
201. Id.
202. 461 U.S. 540 (1983).
203. Id. at 551.
204. Id. (quoting Feeney, 442 U.S. at 279 n.25).
205. 442 U.S. at 265.
206. 461 U.S. at 551.
207. Commonwealth ex rel. Graham v. Schmid, 3 A.2d 701, 704 (Pa. 1939).
208. In claiming that the veterans' preference expresses honor and gratitude toward veterans for their unique contribution to our community, I do not mean to suggest that it rewards an unmerited honor. On this view, service to one's country deserves our appreciation. However, this understanding of the meaning of these laws ought not to be confused with the claim that the veterans must be paid back - as it were - for the years of job experience that they lack due to their absence from the civilian job market. On this view, which has been advanced in some cases, the veterans are less qualified than civilian applicants because their service deprived them of the opportunity to gain either education or experience that other more qualified candidates possess. See, e.g., Johnson v. Robinson, 415 U.S. 361, 380 (1974). Interestingly, other cases examine the claim that the veterans' preference is legitimate because veteran status is a good proxy for job ability. See, e.g., Markel v. McIndoe, 59 F.3d 463, 470 (3d Cir. 1995) (rejecting the veterans' preference as a good proxy for job ability); Schmid, 3 A.2d at 704 (stating that veterans should be given credit for the experience and discipline gained through serving in the military). In other words, the experience of military service makes the job applicant especially well-qualified for the civil service job. These contradictory explanations belie the value of treating the veterans' preference as a proxy at all. The best understanding of these laws sees the preference not as a proxy at all, but instead as a means of selecting veterans qua veterans because we, as a community, wish to honor veterans for their service.
209. 442 U.S. at 266 (citing Brown v. Russell, 43 N.E. 1005, 1008 (Mass. 1896)).
210. See id. at 264.
211. See id. at 276.
212. Id. at 278.
213. See infra note 261.
214. 517 U.S. 620 (1996).
215. Amendment 2 reads: "No Protected Status on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt, or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota, preference, protected status or claim of discrimination." Id. at 624 (quoting COLO. CONST. art. II, § 30b).
216. Id. at 635-36.
217. Id. at 633.
218. See Hellman, supra note 52, at 336-38.
219. Romer, 517 U.S. at 635.
220. E.g., Akhil Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203 (1996);
221. Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENT. 257 (1996);
222. Roderick M. Hills, Jr., Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar's Analysis of Romer, 95 MICH. L. REV. 236 (1996); Koppelman, supra note 130;
223. Louis Michael Seidman, Romer's Radicalism: The Unexpected Revival of Warren Court Activism, 1996 SUP. CT. REV. 67;
224. Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4 (1996).
225. Amar, supra note 209, at 208-21.
226. Farber & Sherry, supra note 209.
227. Id. at 269 (arguing that in "equal protection cases, bill of attainder cases, and even cruel and unusual punishment cases" the Court recognizes "[t]he principle . . . that the government cannot brand any group as unworthy to participate in civil society").
228. Article I, Section 9 of the United States Constitution provides, inter alia, "[n]o bill of attainder or ex post facto law shall be passed."
229. Amar, supra note 209, at 226.
230. Id. at 222.
231. See Hills, supra note 209, at 246.
232. Id. at 247 (citing Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866); United States v. Brown, 381 U.S. 437 (1965)).
233. Id.
234. Id. at 240.
235. Id. at 247.
236. Id. at 239-40.
237. Id. at 241.
238. See Farber & Sherry, supra note 209, at 262-64.
239. Id. at 267-68.
240. Id. at 258.
241. Id. at 266.
242. See id. at 281.
243. The hypothetical case of segregating by race in care facilities for patients in a persistent vegetative state is a good example. See supra Part I.C.
244. Farber & Sherry, supra note 209, at 267.
245. 100 U.S. 303 (1879).
246. Id. at 308; Farber & Sherry, supra note 209, at 267.
247. Farber & Sherry, supra note 209, at 272.
248. See id. at 272.
249. See id. at 271-72 (citing Lawrence, supra note 12, at 317; KARST, supra note 2, at 3).
250. I too reject this view. See supra Part II.A.
251. See discussion supra Part I.C.
252. Koppelman, supra note 130.
253. Koppelman thus agrees with Baker's descriptive claim that objective intent is already used in assessing violations of Equal Protection.
254. See Koppelman, supra note 130, at 93.
255. Id. at 101 (citing JOHN RAWLS, POLITICAL LIBERALISM 430-31 (2d ed. 1996)).
256. See id. at 107.
257. Id. at 109.
258. 388 U.S. 1 (1967).
259. Koppelman, supra note 130, at 133 (emphasis added).
260. Id. at 136.
261. See id.
262. See supra note 209.
263. See supra Part II.C.
264. Romer v. Evans, 517 U.S. 620, 634 (1996). Justice Kennedy's opinion for the Court describes the Amendment as "born of" this animosity, id., thereby indicating that subjective intent is the constitutionally determinative factor. In my view, the Amendment's social meaning is also animosity toward gay men and lesbians.
265. Id. at 644 (Scalia, J., dissenting).
266. For a detailed catalogue of such violence, see Koppelman, supra note 130, at 123-26.
267. Farber & Sherry, supra note 209, at 266.
268. According to Farber and Sherry, to shun is to treat someone as "untouchable," as if he had a "loathsome and contagious disease. The message is that outcasts are not merely inferior; they are not fully human and contact with them is dangerous and degrading." Id.
269. See Romer, 517 U.S. at 648-50 (Scalia, J., dissenting).
270. See id. at 644 (Scalia, J., dissenting).
271. See J.M. Finnis, Legal Enforcement of "Duties to Oneself": Kant v. Neo-Kantians, 87 COLUM. L. REV. 433, 437 (1987).
272. Id. at 437. In his article, Koppelman explicitly leaves open the question whether legislation animated by this view would be permissible since he finds that the climate of hatred of homosexuals makes this interpretation implausible. See Koppelman, supra note 130, at 116.
273. John M. Finnis, Law, Morality, and "Sexual Orientation," 9 NOTRE DAME J.L. ETHICS & PUB. POL'Y 11, 35 (1995).
274. See supra Part II.C.
275. But see Lessig, supra note 10, at 1039 (arguing for limitations on the expressive function of government).
276. Laws that provide for registration of releases sex-offenders and community notification (so-called "Megan's laws") may have a similar social meaning. If so, these laws may be vulnerable on Equal Protection grounds. Under current doctrine, by contrast, commentators have generally found that an Equal Protection challenge to these laws would be weak. See, e.g., Carol L. Kunz, Toward Dispassionate, Effective Control of Sexual Offenders, 47 AM. U. L. REV. 453, 468-69 (1997). Case law rejecting Equal Protection challenges to such laws demonstrates the limitations of the current doctrinal scheme. For example, in People v. Adams, 581 N.E.2d 637 (Ill. 1991), a challenge was brought to Illinois's Habitual Child Sex Offender Registration Act on Eighth Amendment, Due Process, and Equal Protection grounds. Id. at 640. Because a sex-offender is not a member of a protected class and no fundamental right was involved, the challenger was forced to style his Equal Protection claim as unequal protection between sex-offenders like himself and pornographers and employers of child prostitutes. This way of framing the question is counter-intuitive. Surely the Equal Protection problem is not really about such under-inclusiveness. But the doctrine's emphasis on fit - on the rationality of classification - forces this strange posture. The weakness of current doctrine is exemplified by the ease with which the court disposes of this challenge, explaining that the use of children in pornography and prostitution is motivated by money and not sex and therefore that the distinction drawn by the statute is rational. See id. at 642.
277. See Romer v. Evans, 517 U.S. 620, 633 (1996) (noting that the Amendment "is at once too narrow and too broad" in that it "identifies persons by a single trait and then denies them protection across the board"). Kennedy recognizes that the effect of Amendment 2 will be a form of shunning from civil society. He describes its effect in this way: "[T]hese are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." Id. at 631.
278. 478 U.S. 186 (1986).
279. See Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843, 922-23 (1999) (discussing Romer's effect on Bowers and concluding that the former left the latter intact); Thomas Grey, Bowers v. Hardwick Diminished, 68 U. COLO. L. REV. 373, 374 (1997) (arguing that Romer did in fact overrule Bowers); Koppelman, supra note 130, at 137-46 (arguing that Romer does not implicitly overrule Bowers); Seidman, supra note 209 (arguing that Romer and Bowers are inconsistent).
280. On a related question, one might wonder whether a law like the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified in scattered sections of 1 U.S.C. and 28 U.S.C.), violates Equal Protection in that it surely expresses the view that heterosexual unions are more valuable than homosexual unions. As I mentioned earlier, it is plausible to hold this view without thereby impugning the moral worth of gay men and lesbians. See John Finnis, The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Reflections, 42 AM. J. JURIS. 97, 126-34 (1997). A challenge to this law would thus raise the question how the state may express approval for some ways of life - and thereby implicitly disapproval for others - without violating the principle of equal concern. Following the approach outlined above, the state may express a viewpoint about what is of value so long as (1) it does not denigrate the moral worth of some individuals or groups (a point I am stipulating here), and (2) it does not work to exclude those whose values are impugned from contact with the community and thus from an opportunity to change the views of others. I am grateful to Amy Wax, Professor, University of Virginia School of Law, for raising this issue.
281. See, e.g., Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. REV. 1047, 1056-59 (1994).
282. E.g., id. at 1056.
283. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977).
284. See, e.g., Galvan v. Press, 347 U.S. 522, 532 (1954) (upholding a law allowing the deportation of aliens who join the Communist Party); Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1951) (denying a First Amendment claim to communist aliens who were deported).
285. See Toll v. Moreno, 458 U.S. 1, 17 (1982) (striking down a Maryland law granting in-state tuition rates at the University of Maryland to domiciled citizens and immigrant aliens but denying it to non-immigrant aliens).
286. But see INS v. Chadha, 462 U.S. 919, 958-59 (1983) (striking down a law allowing a one-house veto of an executive branch decision to allow a deportable alien to remain in the United States on the grounds that such action is legislative and therefore requires passage by both houses and presentation to the President). Stephen Legomsky insightfully argues that Chadha demonstrates that the plenary power of Congress to control immigration is not in fact plenary, for "[i]n the same sentence in which the Court described the power as 'plenary,' it framed the issue as whether Congress's exercise of that power conforms to the Constitution." Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 302.
287. See, e.g., Bernal v. Fainter, 467 U.S. 216, 227 (1984).
288. Foley v. Connelie, 435 U.S. 291, 300 (1978).
289. Sugarman v. Dougall, 413 U.S. 634, 646 (1973).
290. Cabell v. Chavez-Salido, 454 U.S. 432, 449 (1982) (upholding a California law requiring probation officers to be citizens).
291. Ambach v. Norwick, 441 U.S. 68, 80-81 (1979) (upholding a New York law requiring that public school teachers be citizens or have manifested an intention to apply for citizenship).
292. In re Griffiths, 413 U.S. 717, 729 (1973) (striking down a Connecticut law denying aliens admission to the state bar).
293. For a careful treatment of this question, see WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 10-33 (David Miller & Alan Ryan eds., 1995).
294. 426 U.S. 67, 80 (1976).
295. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982) (arguing that all questions of Equal Protection are reducible to questions regarding what substantive rights each person is entitled to and consequently that the moral imperative of equality is empty).
296. Stephen Legomsky has made a similar claim. See Legomsky, supra note 271, at 270.
297. 408 U.S. 753 (1972).
298. Id. at 756-57.
299. Id. at 769-70.
300. Id. at 762.
301. See supra Part II.H for a more detailed discussion of standing issues.