an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Animus versus Moral Opposition: Material and Expressive Considerations
Neil S. Siegel
This post is part of the Symposium on Unconstitutional Animus.
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?”
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
Some may think that the outcome of
same-sex marriage litigation turns on this question. For example, in a New York Timescolumn 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.
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.
conclusion follows from the two premises, so it remains to show that the
premises are valid.
the first premise, consider these statements from the Court:
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)).
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)).
Court’s conclusion explains why lawyers charged with defending state bans on
same-sex marriage do not justify them on moral grounds.
so, courts have registered that moral opposition undergirds state bans. In support of this second premise, consider
Congress justified DOMA on moral grounds. SeeWindsor, 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
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.”
Brief of Harris Class Intervenors, Bostic
v. Schaefer, 2014 WL31398089(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 marriagewithin the last 18 years.
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
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
heterosexuality—expressing moral concerns about homosexuality—is the only
conceivable reason why states exclude same-sex couples from the institution of
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
Neil S. Siegel is a Professor at Duke Law School. He can be reached at: siegel at duke.law.edu. Posted
by Guest Blogger [link]
Monday, September 29, 2014
Persistent Questions About Animus
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
(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
Thus, all the questions
about animus that existed before Windsorremain
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.
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.
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).
Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization
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).
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
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.
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.
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.
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. Posted
by Frank Pasquale [link]
The Invention of Low-Value Speech
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.
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.”
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.”
“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
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.
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.
piece should definitively put this dishonest bit of doctrine to rest.