Tuesday, September 30, 2014

Animus versus Moral Opposition: Material and Expressive Considerations

Guest Blogger

Neil S. Siegel

This post is part of the Symposium on Unconstitutional Animus.

Some participants in the debate over same-sex marriage are offended by the suggestion that any state ban is based upon animus.  Like Chief Justice Roberts during oral argument in United States v. Windsor, they ask incredulously, for example, “So that was the view of the 84 Senators who voted in favor of [the law] and the President who signed it?  They were motivated by animus?”

Others believe that most, if not all, state bans are based upon animus.  They applaud Judge Posner for calling out a state as “either . . . oblivious to, or think[ing] irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal.”  Baskin v. Bogan, 2014 WL 4359059, at *12 (7th Cir. Sept. 4, 2014).  Who is right depends in part upon the relation between unconstitutional animus and moral opposition to homosexuality.  

Some may think that the outcome of same-sex marriage litigation turns on this question.  For example, in a New York Times column in late July, Adam Liptak asked whether it may be difficult for the Supreme Court to invalidate state bans given the findings of certain lower courts that animus toward gay people played no role in the enactment of some such bans.

I responded in part that the Court does not define animus as limited to malice or intent to harm—it also understands animus to include expressions of moral opposition to homosexuality, evidence of which abounds in same-sex marriage cases.  The more important point, however, is that the Court’s doctrine requires the invalidation of state bans on same-sex marriage regardless of whether moral opposition is animus.

A proof of this assertion is straightforward:

1.  In Lawrence v. Texas, 539 U.S. 558 (2003), the Court concluded that the expression of moral opposition to homosexuality is not a legitimate state interest that can justify denying gay people equality or liberty.

2.  The reason why states prohibit same-sex couples from marrying is to express moral opposition to homosexuality—to declare heterosexuality a superior norm (which is the same thing). 

3.  Therefore, state bans on same-sex marriage violate the Equal Protection Clause.

The conclusion follows from the two premises, so it remains to show that the premises are valid.

Regarding the first premise, consider these statements from the Court:
·      “[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral. . . . [However,] [t]he issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.  ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’”  Lawrence v. Texas, 539 U.S. 558, 571 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992)).

·      “JUSTICE STEVENS [concluded that] ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. . . .’  JUSTICE  STEVENS’ analysis, in our view, should have been controlling in Bowers and should control here.”  Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).

The Court’s conclusion explains why lawyers charged with defending state bans on same-sex marriage do not justify them on moral grounds. 

Even so, courts have registered that moral opposition undergirds state bans.  In support of this second premise, consider the following:

·      Congress justified DOMA on moral grounds.  See Windsor, 133 S.Ct. at 2693 (quoting H.R. Rep. No. 104-664 at 16 (1996)) (“The House concluded that DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo–Christian) morality.’  The stated purpose of the law was to promote an ‘interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.’”).  

·      Congress was responding to a 1993 Hawaii Supreme Court decision subjecting the state’s ban to strict scrutiny under the state constitution.  See Windsor, 133 S.Ct. at 2693 (citing H.R. Rep. No. 104–664, at 12–13 (1996)) (“The House Report announced its conclusion that ‘it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H.R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.’”).  

·      States that subsequently adopted or affirmed bans on same-sex marriage were responding to similar developments and had similar concerns.  For example, Virginia’s bans “were enacted as specific responses to developments in other jurisdictions where same-sex couples sought the freedom to marry.”  Response Brief of Harris Class Intervenors, Bostic v. Schaefer, 2014 WL 31398089 (July 28, 2014).  Except for Wyoming, all 31 states still enforcing and defending their bans have adopted a statute or a constitutional amendment prohibiting same-sex marriage within the last 18 years.

·      In adopting their bans, states expressed moral objections.  For example, the official statement in support of California’s Proposition 8 declared: “We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay.  That is an issue for parents to discuss with their children according to their own values and beliefs.”  California General Election Tuesday, Nov. 4 2008 Official Voter Information Guide, Prop 8 Arguments and Rebuttals.

·      The non-moral justifications that states offer to justify their bans “ta[x] the credulity of the credulous,” Maryland v. King, 133 S.Ct. 1958, 1980 (2013) (Scalia, J., dissenting).  For example:

            Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured . . . to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage.

      Baskin v. Bogan, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014)).  States make     such arguments even as they allow infertile heterosexuals to marry and disallow   same-sex couples with adopted children to marry.

·      By contrast, the moral justification for state bans on same-sex marriage suffers from no under- or over-inclusiveness.  The classification fits the justification perfectly.

Validating heterosexuality—expressing moral concerns about homosexuality—is the only conceivable reason why states exclude same-sex couples from the institution of marriage.

* * *

Although it makes no material difference to the correct outcome of marriage equality litigation, there are expressive advantages to describing opponents of same-sex marriage as moved by moral concerns, not animus.  Such a characterization encourages constitutional values to evolve—as the Court in Windsor was doing by using federalism as a way station—without accusing others of bigotry.  A moral characterization also shows respect by describing fellow citizens as they understand themselves.  (One might also, as Justice Kennedy sometimes did in Windsor, emphasize harmful effects and social meanings apart from anyone’s bad purpose.)  It is possible to deeply disagree with others and still show them respect.  Other things equal, that seems preferable to deeply disagreeing and showing them disrespect.

Neil S. Siegel is a Professor at Duke Law School.  He can be reached at: siegel at 

Monday, September 29, 2014

Persistent Questions About Animus

Guest Blogger

Susannah W. Pollvogt

This post is part of the Symposium on Unconstitutional Animus.

Animus is an enigma. 

On the one hand, it is an important constitutional concept that has proven critical to judicial recognition of the rights of sexual minorities.  On the other hand, it seems that no one really knows what animus is.

One might expect that, after the highest court in the nation has relied on a doctrine (animus) in an important and high profile decision (Windsor), there would be a modicum of doctrinal consolidation in the wake of that decision.  But this has not been the case.

Instead, the lower courts have openly expressed confusion about the meaning and function of animus, and advocates have continued to pursue other lines of argument in the pending state-level same-sex marriage cases, reluctant to lash their fates to the unsteady mast of Windsor.

In 2012, before the Supreme Court’s decision in Windsor, I identified three unanswered questions plaguing the doctrine of animus:

(1)  How does the Court define animus?  As malice or “desire to harm”?  Or something milder, like bias or moral disapproval?  Is animus even properly considered as an impermissible subjective mindset, or is it instead an impermissible objective function?

(2)  What does the Court accept as evidence of animus?  Blatant statements of bias surrounding the adoption of a law obviously play a role, but is such evidence necessary?  And, whether or not it is necessary, is such evidence standing alone sufficient?

(3)  What doctrinal consequences flow from a finding of animus?  Is animus a “silver bullet,” defeating a law regardless of whether the government offers other, superficially legitimate justifications?  Or is animus simply one illegitimate state interest, such that a law can be saved by other rationales?  Finally, is it possible that animus is the trigger of that most chimeric level of scrutiny, “heightened rational basis review”?

When the Supreme Court granted certiorari in Windsor and Perry, I thought—naively, to be sure—that the Court would either provide guidance on these questions or avoid the doctrine of animus altogether.  Instead, it did neither. 

Justice Kennedy, in authoring the majority opinion in Windsor, relied on the doctrine of animus, but without defining its contours.  Indeed, the dissenting opinions attacked the majority on the basis of the three questions identified above.  Regarding the definition of animus, Chief Justice Roberts contended that invoking the doctrine of animus was tantamount to labeling one’s opponents hate-filled bigots.  Regarding evidence of animus, Justice Scalia found stray comments in the legislative record insufficient to support this divisive charge.  Regarding the consequences of finding animus, both Roberts and Scalia pointed to precedent establishing that other rational bases could save a law despite a finding of impermissible motive. 

While Kennedy may not be in the habit of engaging dissenting opinions, the dissents in Windsor simply highlighted a larger concern: the persistent ambiguity surrounding the doctrine of animus—something Kennedy could have chosen to address.  But he apparently did not see the need to engage these controversies head-on—at least not in the context of deciding Windsor.

Thus, all the questions about animus that existed before Windsor remain open after Windsor.  Indeed, these three unresolved issues were explicitly named by Judge Holmes of the Tenth Circuit, concurring in Bishop v. Smith.  And another federal court recognized that animus was an issue in the state-level same-sex marriage cases, but declined to engage the question because “the Supreme Court has not yet delineated the contours of such an approach.”


Accordingly, part of the purpose of this symposium is to delineate the contours of the animus “approach,” while at the same time critiquing the doctrine and questioning whether it is even necessary.

I have views on the correct answer to all three of the questions posed above, but for this symposium, I want to focus on the third—the consequences of finding animus.  Specifically, I want to discuss the relationship between animus and rational basis review.

I have come around to the view that the “best” understanding of this relationship is that, where there is some evidence that animus is afoot, the Court applies so-called “heightened rational basis review.”  But beyond simply referring to it as “heightened,” we can identify specific features of this level of scrutiny.

First, the core substance of the two prongs of the test remains the same.  The discriminatory law must serve some legitimate state interest and the trait that defines that classification must be rationally related to that interest.  In its traditional form, this test is notoriously easy for a governmental defendant to meet.

But it is not necessarily the substance of the standard that makes rational basis review so deadly to equal protection plaintiffs.  Rather, it is the burden of proof.  Under both forms of heightened scrutiny, the burden is on the state to offer evidence meeting the standard.  Conversely, under traditional rational basis review, the burden is placed on the plaintiff to prove a negative—the absence of any conceivable legitimate state interest or rational relationship.  The state need not offer any evidence in support of the law whatsoever.  Worse yet, as suggested by this formulation, the Court is free to conceive of justifications for the law after the fact, without any notice to the plaintiff or any opportunity for the plaintiff to “disprove” these judicial imaginings.

Traditional rational basis review is an abomination; it is a standard-less standard that amplifies rather than constrains judicial discretion, encouraging appellate judges to engage in imaginary fact-finding and naked policy-making.  Lest we forget, traditional rational basis review was the standard applied in Plessy v. Ferguson, and it remains dangerous for the same reasons it was dangerous in that case.  Traditional rational basis review provides no resistance to contemporary and evolving prejudices.  Quite the contrary—it encourages dressing up of such prejudices as reasoning and enshrines them in precedent.

We need an antidote to traditional rational basis review, and the doctrine of animus is that antidote.  Specifically, what we see the Court doing in the animus cases is shifting the burden under rational basis review to the state—an extremely consequential departure from traditional applications of the test.

That the Court has shifted the burden in these cases is evidenced by the features of its analysis and the language it deploys.  Under heightened rational basis review, the Court looks at actual, not imaginary, legislative purposes.  It parses legislative history in search of such purposes.  It examines evidence that is present or absent from the record.  It is sensitive to significant levels of over- and under-inclusiveness.  And it requires the government to articulate some affirmative connection between the trait that defines the classification and the interests advanced in justification of the discriminatory law.

This burden-shifting is the critical antidote to the flaws of traditional rational basis review.  This is appropriate, because the extreme deference encompassed in traditional rational basis review is based on a presumption of constitutionality.  That presumption evaporates once there is reason to believe animus is afoot.


At the end of the day, the Equal Protection Clause is concerned not with discrimination per se, but with invidious discrimination.  Certain categories of discrimination are presumptively invidious, including discrimination based on suspect and quasi-suspect classifications, and discrimination regarding fundamental rights.

Animus can be seen as the doctrinal tool for detecting invidious discrimination in all other cases.

Susannah Pollvogt is an Associate Professor at Washburn University School of Law.  She can be reached at: susannah.pollvogt at

Symposium on Unconstitutional Animus

Guest Blogger

Susannah W. Pollvogt

This week Balkinization will be hosting a symposium on the issue of unconstitutional animus.  Participants will include Susannah Pollvogt (Washburn), Neil Siegel (Duke), Dale Carpenter (Minnesota), William Araiza (Brooklyn), Russell Robinson (Berkeley), and Justin Marceau (Denver).

Susannah Pollvogt is an Associate Professor at Washburn University School of Law.  She can be reached at: susannah.pollvogt at

Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization


When Noel Canning v. NLRB was decided last June, several commentators noted that the 5-4 vote marked a victory for living constitutionalism (represented by Justice Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's concurrence, which read like a dissent).

In fact, Breyer's opinion isn't particularly living constitutionalist. It is traditionalist. It is strongly rooted in past practice. It argues that we should not disturb conventions that are of long-standing. If living constitutionalism is the idea that the Constitution should be interpreted to keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't seem all that interested in *that* project. The opinion argues, instead, that there is a long history of interpreting the recess appointments clause in a particular way, and we should retain it unless there are strong considerations otherwise.  If you applied the logic of this opinion to same-sex marriage, you would quickly discover that Breyer sounds much more like a conservative traditionalist than a living constitutionalist.  Indeed, I can easily imagine parts of Breyer's opinion being quoted by conservatives to criticize liberals in later cases.  (You read it here first.)

Conversely, Scalia's opinion, although framed in the language of originalism and textualism, is the truly revolutionary opinion. Here (in marked contrast to many of his other writings) Scalia is skeptical of arguments from tradition. He argues that deferring to an imagined tradition tends to favor stronger parties (Presidents, who can act decisively) over weaker ones (Congress, which faces collective action problems). He asserts that there is no unbroken history of established practice. And even if there is such a history, (1) it may not be worthy of our respect because it reflects past usurpations of power; and (2) we should disregard it in favor of the text. Scalia’s argument in Noel Canning is radical, not in the sense of being left-wing, but radical in the sense of seeking to return to the root of things and argue them once again based on first principles.  But of course, that’s what originalism is—radical, not conservative.

Indeed, I would go much further.  A central claim of my recent scholarship has been that we are continually misled by accepting the familiar opposition between originalism and the idea of a living Constitution.  For example, I have argued that the originalism of the modern conservative movement *is* living constitutionalism-- it is the living constitutionalism of movement conservatives, who want to reform and redeem American constitutionalism, which they believe took a wrong turn in the middle of the twentieth century.  Like the great liberal Justice Hugo Black before them, contemporary conservatives have adopted the language of originalism and textualism to achieve their revolutionary goals. In Noel Canning, Scalia does not sound at all Burkean-- he sounds like a man who wants to shake things up.

Why is it necessary to shake things up? This brings us to another feature of the two opinions-- their relationship to contemporary politics, and, in particular, to the perhaps the most important feature of that politics--political polarization.  Breyer's opinion in Noel Canning is much less interested than Scalia's in making constitutional interpretation take account of changing conditions in constitutional politics. Once again, if you think that living constitutionalism is about adapting to changed conditions, then Breyer's opinion is much less living constitutionalist than Scalia's.
Read more »

Friday, September 26, 2014

Money Talks for Opportunistic "Free Speech" Havens

Frank Pasquale

I am thrilled to see my colleague Danielle Citron's book, Hate Crimes in Cyberspace, garner so many positive reviews and mentions. Katharine Quimby makes a great point about Citron's work in the Guardian today:
Until recently, [large internet companies] have not addressed "harassing content", arguing that they are "mere conduits". But that is changing. Citron is part of the movement promoting reform, as a member of a low-key, but influential body: the Anti-Cyberhate Working Group, made up of industry representatives, non-governmental organisations, academics and others. It originated in a campaign to combat antisemitism online, but soon widened its scope. Facebook has arguably changed most rapidly, with Google's YouTube also now acting, on occasion, to combat harassment. Twitter has been the slowest, and has come in for criticism in the British context. Of course, money talks – and is having an effect: Citron cites Facebook's decision to take down pro‑rape pages in May 2013, after 15 companies, including Nissan, threatened to pull their ads.
In other works: when it's cheaper to do nothing, online gatekeepers will push CDA immunities as the foundation of free speech online. But as soon as the cost of laissez-faire rises, they'll assert free speech rights and despotic dominion over their platforms. I'm sure their lawyers will bend over backwards to justify the chameleon rhetoric. The complexity of free speech law offers multiple affordances for doing so. But we should all be clear on the motivation: less the noble ambition to "connect the world" than the financial imperative of constant earnings growth.

The Invention of Low-Value Speech

Andrew Koppelman

Here’s a familiar rule of First Amendment law:  free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. As recently as 2010, the Supreme Court declared in United States v. Stevens that First Amendment protections extend equally to all speech and expression except those “well defined and narrowly limited classes” of low-value speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.”

In an important new paper, Genevieve Lakier shows that this story is false.  In early American courts, all speech—even low-value speech—was protected against prior restraint, and almost all speech— even high-value speech—was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

The fake historical narrative was offhandedly invented by Justice Frank Murphy in Chaplinsky v. New Hampshire (1942).  The passage the Stevens Court quoted declares:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘‘fighting’’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The passage closely tracks the following, from Zechariah Chafee’s important book, Free Speech in the United States (1942), which Lakier quotes:

“obscenity, profanity, and gross libels upon individuals . . . are too well-recognized to question their constitutionality, but I believe that if properly limited they fall outside the protection of the free speech clauses as I have defined them. My reason is not that they existed at common law before the constitutions, for a similar argument would apply to the crime of sedition, which was abolished by the First Amendment. . . . The true explanation is that profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see.”

Lakier writes:

“Justice Murphy borrowed a great deal from this passage in constructing his opinion in Chaplinsky, as is evident from the opinion’s text. Nevertheless, there is a crucial difference between Chafee’s argument and Murphy’s recapitulation of the argument in Chaplinsky—namely, that Chafee never claimed the distinction he drew between what he called the “normal” criminal laws of obscenity, profanity, and libel and the abnormal and unconstitutional sedition statutes was based on historical practice.”

Her discovery of the Chafee passage is only one of the virtues of this terrific paper.  She also displays an impressive command of nineteenth century free speech law.

The Court today declares, as a basis for rejecting state attempts to prohibit such novelties as videos of animals being tortured, that the only permissible content-based regulations of speech are those that target speech that was historically unprotected. If that were true, then child pornography – a category unknown to the law until the late twentieth century – would likewise be protected.

Murphy was merely making an offhand claim to shore up the value judgment that underlay his holding.  The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind.  The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

Lakier’s piece should definitively put this dishonest bit of doctrine to rest.