[I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
—Moreno (1973)
In some ways, Department of Agriculture v. Moreno1 sounds odd to modern ears. The case, decided in 1973, features congresspersons’ verbal attacks on “hippies” and “hippie communes,” terms that call to mind the counterculture of the 1960s and mainstream America’s reaction to it. But the Court’s holding in that case—that a desire to harm those persons could not support the constitutionality of Congress’s action—survived the fading of the Flower Power era. Moreno’s famous statement about bad legislative motive—the phrase quoted at the start of this chapter—has been cited consistently by the Court over the subsequent forty years when a statute appeared to the Court to be grounded in animus. In a very real way, that statement has become the foundation of the modern Court’s animus doctrine. For that reason Moreno, despite its anachronistic facts, merits a close look.
For a case supposedly about hippies, the plaintiffs in Moreno were remarkably mundane. For example, the named plaintiff, Jacinta Moreno, was a fifty-six-year-old woman living in Homestead, Florida, who suffered from diabetes and moved in with her neighbor and her neighbor’s three children in order to make ends meet. Her lawyer’s description of her economic situation features the telling details of someone just getting by: a public assistance income of $75 per month, out of which she spent $40 as her share of the joint rent, $10 for her share of the gas and electric, $10 for bus fare for her monthly trips to the hospital, and $5 for laundry—leaving $10 for her food budget, supplemented by food stamps.
Sheila Ann Hejny, of Kernersville, North Carolina, faced a different type of challenge. She, her husband, and their three children were also impoverished and thus also received food stamps. Their legal situation changed when they took in a neighbor’s child who had been forced to leave her home. According to Ms. Hejny’s lawyer, the young girl had shown a great deal of behavioral improvement since moving in with the Hejny family.
These were two2 stories that were in many ways different. But they were similar in that they both reflected persons struggling to get by and doing so in part by living in households that were at least slightly unconventional, in the sense that they included unrelated persons. That’s where the problem arose. In January 1971, Congress amended the federal food stamp program to change the definition of “household,” the unit by which food stamp eligibility had customarily been determined. As translated into regulations promulgated by the Secretary of Agriculture (the agency in charge of the food stamp program), the amendment meant that, with minor exceptions, a group of persons living together could not qualify for food stamps if the home included unrelated persons “living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common.”3 Thus neither Jacinta Moreno, living with her neighbor, nor Sheila Ann Hejny, whose family had taken in their neighbor’s daughter, remained eligible to receive food stamps.
When the Moreno plaintiffs sued in federal district court, the government argued that the law satisfied the “rational basis” test, which Chapter 1 sketched out in its conclusion.4 Logically enough, the lower court began its equal protection analysis by considering the overall purposes of the food stamp program, stated in the statute: to alleviate hunger and malnutrition and improve the agricultural economy. But it could find no rational connection between the household definition statute and those goals.
Turning away from the statute as a whole and toward the challenged amendment itself, the lower court could find no possible rationale for the law except “to combat the unconventional living arrangements popularly associated with” hippies. But it refused to accept that justification as adequate, on two grounds. First, it noted then-recent Supreme Court precedent protecting rights to free speech and intimate association and questioned whether this potential justification for the food stamp amendment could survive the Court’s protection of such privacy rights, given how the law penalized certain lifestyle choices. Second, it concluded that, even if the morality justification could survive constitutional scrutiny, it would be overbroad, since the law penalized all living units including unrelated persons—not just such units that were composed of persons of both sexes. (Apparently, the possibility of same-sex intimate relationships did not even cross the court’s mind as something that Congress might have been thinking of trying to penalize as immoral!) Based on this reasoning the lower court held that the amendment violated the Constitution.
On review, the Supreme Court affirmed the lower court. The Court began by repeating the lower court’s conclusion that the household definition law did not rationally further either of the food stamp program’s overall goals. It then sought to determine the law’s possible goals by referring to the legislative history. As the introduction to this chapter implied, that legislative history, though sparse, included references to “hippies” and “hippie communes” as the intended targets of the newly limited “household” definition. It was those references to Congress’s purpose that led the Court to state that “a bare . . . desire to harm a politically unpopular group” could not serve as a legitimate government interest motivating a law.
At the Supreme Court, the government apparently changed its approach from its litigation in the trial court, “abandon[ing]” the morality argument but offering other interests instead: the increased potential for abuse of the program posed by households of unrelated individuals and the relative instability of such households, thereby “increasing the difficulty of detecting such abuses.”5 The Court then proceeded to consider those interests. But before we turn to that consideration, let us see where the Court’s analysis had taken it so far. At this point in the opinion, the Court had agreed with the lower court that the household definition law had no rational connection with the overall purposes of the food stamp program. It had then cited the legislative history about “hippies” and “hippie communes” and concluded that a desire simply to harm those groups did not constitute a legitimate purpose.
In other words, then, the Court had examined both sides of the rational relationship test and found the challenged law to be deficient. When considering the food stamp statute’s overall goals it found no connection to the household definition law. But when it then looked further and examined the goals that did appear to motivate Congress, it found those goals inadmissible—indeed, illegitimate. With no connection to the goals that ostensibly motivated the food stamp law as a whole, and with goals that did in fact seem to motivate Congress condemned as illegitimate, it is no surprise that the Court approached the government’s argument with skepticism.
Given that understandable skepticism, the Court made short work of the anti-fraud rationales the government offered. It noted that other provisions of the food stamp law addressed that concern, a fact that was enough to cast “considerable doubt” on the government’s explanation. Even more damningly, however, it explained that the household definition statute was almost laughably irrational in addressing that concern. It explained that, under that statute’s definition, a “household” constituted persons who (1) lived as “an economic unit,” (2) shared “cooking facilities,” and (3) “for whom food is customarily purchased in common.” Thus, Justice Brennan explained, two unrelated persons who wanted to both collect food stamps could simply set up two “households,” say, by buying their own food, setting up separate cooking facilities, or otherwise not living as “an economic unit”—for example, by paying their own bills.
Of course, such steps would require financial resources. Ironically, then, truly indigent persons—people like Jacinta Moreno—would find it harder to circumvent these requirements than poor, but not destitute, people who could, for example, buy their own food and thus qualify as two separate households under one roof, each of which would continue to be eligible for food stamps. As Justice Brennan put it, “[I]n practical operation, the 1971 amendment excludes from participation in the food stamp program, not those persons who are ‘likely to abuse the program,’ but, rather, only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility.” He conceded that “[t]raditional equal protection analysis does not require that every classification be drawn with precise ‘mathematical nicety.’” “But,” he concluded, “the classification here in issue is not only ‘imprecise,’ it is wholly without any rational basis.”6
To be sure, Justice Rehnquist, joined by Chief Justice Burger, disagreed, finding that the statute did satisfy the minimum level of rationality review the court required.7 In particular, he concluded that the household definition statute was, as he put it, “not . . . quite as irrational as the Court seems to believe” as an anti-fraud measure. Hardly a vote of confidence but, nevertheless, he concluded, enough to sustain the statute, given the great degree of deference that characterizes traditional rational basis review. Notably, he did not discuss the legislative history indicating a more sinister—and, in the majority’s view, constitutionally illegitimate—motive.
Justice Rehnquist’s argument demands engagement. After all, he is right—and indeed, the majority conceded—that rational basis review does not ask much of the government. Perhaps the claimed anti-fraud/fraud detection concerns were, if nowhere near a perfect match for the statute’s household definition, at least close enough to justify their upholding. Why, then, did the majority apply (at least somewhat) elevated scrutiny? As we will see in later chapters, this is in many ways the fundamental question of rational basis review. Those chapters will discuss government actions—a city council’s land-use decision, a voter-enacted state-law initiative, and a federal statute—that were all defended as promoting reasonable-sounding justifications. None of those actions promoted those legitimate interests with laser-like precision. But, as each of these government defendants (accurately) noted, rational basis review does not require such precision. Nevertheless, the Court struck all of them down, finding animus. How did it do so? What is the relationship between irrationality and animus? We begin this discussion with Moreno because it is the foundational modern case for examining that relationship.
Let’s return to the majority’s analysis. Recall that the Court began, reasonably enough, by considering the explicitly stated goals of the food stamp program: alleviating hunger and promoting the agricultural economy. As the Court noted, the household definition statute played no role in furthering those goals. To be sure, that fact should not necessarily give rise to suspicion that the statute sought to further illegitimate goals or that the statute lacked any rational connection to a legitimate government interest. After all, we can imagine many pieces of the food stamp regime that probably do not directly further those goals. Indeed, any restriction on the availability of food stamps would presumably fall into that category. This should not be surprising: Small, detailed parts of a complex statute often promote its general goals only indirectly, as part of an interlocking scheme of provisions. Asking that each such component directly promote the broad, overall goals of the statute is often asking too much.
But there was more. After finding no close (or even rational) connection to those broader goals, the Court examined the household definition statute in more detail, to discern what Congress might have intended more particularly. That investigation revealed real trouble signs—the legislative history revealing Congress’s punitive motivations. Of course, those motivations could not suffice to uphold the statute. Thus, the Court turned to the statute’s last defense—the anti-fraud justifications that the government’s lawyers suggested might have justified the law. Justice Rehnquist found those justifications adequate. But he did so in a vacuum—that is, without acknowledging the previous steps the majority had taken.
Doing our best to reconcile the majority and dissenting opinions leads us to the conclusion that that background context—the statute’s lack of connection to the broader goals of the food stamp program and the troubling character of its more particularized motivations—must have made a difference. In particular, one can perhaps understand the majority’s reading as follows. First, any statute must have a purpose against which it has to be tested for fit, even if that test is deferential (as the rational basis standard is). With the food stamp program’s more general goals discounted as possible purposes, the Court might then have reasoned that the statute needed to stand or fall on grounds particular to it. But the most obvious of those grounds—the purpose expressed by the legislative history—was not adequate. Indeed, it was worse than inadequate: As later courts would suggest, it was affirmatively problematic.
Still, the Moreno Court itself did not characterize that purpose in those terms. Indeed, in the sentence immediately following its soon-to-be famous statement about “a bare desire to harm” not “constitut[ing] a legitimate government interest,” the Court, quoting the lower court, then said the following: “As a result, ‘(a) purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the 1971 amendment.’”8 Note what that sentence says: “[A] purpose to discriminate against hippies” cannot justify the household definition statute “in and of itself and without reference to (some independent) considerations in the public interest.” Thus the Court did not stop its analysis when it uncovered the legislative history suggesting that the household definition statute was motivated by “a bare desire to harm” hippies and hippie communes. Instead, it pressed on, which meant examining the government’s proffered anti-fraud justification.
But by this time the Court was rightly suspicious. The statute did not further the food stamp program’s overall goals. And the statute’s most evident goal was inadmissible and constitutionally troubling. And finally, the government had come up with the anti-fraud goals well after the fact.9 With poorly fitting goals, concocted long after the fact, standing in for the apparently actual (but illegitimate) goals of the statute, and with the statute not even close to fitting the overall program’s goals, it should not surprise us that the Moreno Court found a constitutionally inadequate fit, even given its concession that the rational basis standard did not require “mathematical nicety.” Justice Rehnquist mentioned none of this.
To be sure, the Moreno majority did not lay any of this out. But it did establish the groundwork for the evolution of animus doctrine, through both its famous statement about “a bare desire to harm” constituting an illegitimate government purpose and its skeletal application of that principle. It would fall to later cases to flesh out the implications of its analysis.