1 For a general discussion of this issue, see Gordon Wood, The Creation of the American Republic 53–65, 403–409 (W. W. Norton 1969).
2 See Kenji Yoshino, “The New Equal Protection,” 124 Harv. L. Rev. 747 (2011).
3 See, e.g., The Random House College Dictionary 53 (revised ed. 1975) (providing as the first definition of “animus,” “hostile feeling or attitude; antagonism”).
4 In addition to historical examples of such dehumanization, the philosopher Martha Nussbaum has argued that much of the contemporary bias against lesbians and (especially) gay men flows from a sense of visceral “disgust” at the very idea of same-sex (and especially same-sex male) sexuality. According to Professor Nussbaum, such disgust naturally leads to a view of gay men and lesbians as less than human. See Martha Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford Univ. Press 2010).
5 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
1 Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
2 Some scholars distinguish these two phenomena, identifying more general, but nevertheless favoritism-based, laws as “class legislation” while labeling laws that operate on particular, named parties “special legislation.” For our more general purposes, we can lump these two types of laws together while nevertheless recognizing the possibility that this distinction may be valid and useful for purposes of more detailed historical analysis. See Evan Zoldan, “The Failure of Equal Protection and the Alternative of Legislative Generality” (manuscript on file with author).
3 Federalist No. 10 was not the only place where Madison set forth his theory. See James Madison, “Vices of the Political System of the United States,” in 9 The Papers of James Madison 345 (Robert A. Rutland et al. eds., Univ. Chicago Press 1975).
4 Federalist No. 10 (James Madison).
5 Barron v. Baltimore, 32 U.S. 243 (1833).
6 It bears noting that, like other fundamental principles of American constitutionalism, the policy disfavoring class legislation can also be implemented by the political branches. A notable example of this phenomenon is the message President Andrew Jackson delivered to accompany his veto of the bill rechartering the Bank of the United States. That message explained that his veto was grounded in large part on the monopoly profits the bank would bestow on a small class of wealthy financiers. In a passage that could be understood as a summation of the class legislation idea, Jackson said:
Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. . . . [B]ut when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society . . . have a right to complain of the injustice of their Government. There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing.
Andrew Jackson, “Veto Message” (July 10, 1832), reprinted as “President Jackson’s Veto Message regarding the Bank of the United States; July 10, 1832,” The Avalon Project: Documents in Law, History and Diplomacy, at the Lillian Goldman Law Library, Yale Law School, http://avalon.law.yale.edu.
7 Again, some scholars distinguish such “class legislation” from “special legislation”—that is, legislation that singled out named individuals for particular benefits or burdens. See Zoldan, “Failure of Equal Protection.”
8 Vanzant v. Waddell, 10 Tenn. 260, 270–271 (1829).
9 Wally’s Heirs v. Kennedy, 10 Tenn. 554 (1831).
10 Id. at 554, 556.
11 Id. at 554, 556–557.
12 See, e.g., Vanzant at 270–271.
13 Railway Express Agency v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring).
14 See Timothy Zick, “Angry White Males: The Equal Protection Clause and ‘Classes of One,’” 89 Kentucky L.J. 69, 91 (2000–2001) (citing congresspersons’ statements).
15 See, e.g., Eugene Gressman, “The Unhappy History of Civil Rights Legislation,” 50 Mich. L. Rev. 1323, 1333 (1952) (“In any event, it was the privileges and immunities clause which the framers regarded as the core of section 1 of the [Fourteenth] amendment.”).
16 The Slaughter-House Cases, 83 U.S. 36 (1872).
17 See, e.g., Ronald M. Labbé & Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment 34–42 (Univ. Press Kansas 2005) (noting the connection between the challenged law and threats to the city’s water supply).
18 See, e.g., Steven Calabresi & Abe Salander, “Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers,” 65 Fla. L. Rev. 909, 958 n. 268 (2013) (citing sources).
19 United States v. Cruikshank, 92 U.S. 542 (1875).
20 See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883) (giving a narrow reading to Congress’s power to enforce the Fourteenth Amendment and expressing impatience with continued demands for legal protection of African Americans’ equality rights). However, the Court did vindicate African Americans’ rights to sit on juries and to be tried by juries that were not selected via racially discriminatory laws. See, e.g., Strauder v. West Virginia, 100 U.S. 303 (1879).
21 Barbier v. Connolly, 113 U.S. 27 (1884).
22 Yick Wo v. Hopkins, 118 U.S. 356 (1886).
23 Barbier, 113 U.S. at 31–32.
24 Gulf, Colorado, & Santa Fe Railway v. Ellis, 165 U.S. 150 (1897).
25 Atchison, Topeka, & Santa Fe Railroad v. Matthews, 174 U.S. 96 (1899).
26 Scholars shorthand the Court’s protection of this right during the first third of the Twentieth century as “the Lochner era,” after a 1905 case, United States v. Lochner, 198 U.S. 45 (1905), where the Court struck down a maximum-working-hour law for bakers as violating bakers and their employers’ right to contract freely for labor. During that era, courts often—though not invariably—found similar violations in other labor and economic legislation.
27 NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937).
28 E.g., Erie Railroad v. Tomkins, 304 U.S. 64 (1938) (overruling a century-old precedent providing that, when deciding cases that were brought in federal court because of the diversity of the parties’ state citizenship, federal courts should apply general legal principles rather than the law of the relevant state).
29 United States v. Carolene Products, 304 U.S. 144 (1938).
30 Perhaps surprisingly, the Court hesitated to use political process reasoning when deciding race cases, even though this was the first type of discrimination the Court seriously engaged after 1938. See Michael Klarman, “An Interpretive History of Modern Equal Protection,” 90 Mich. L. Rev. 213 (1991).
31 This is not to suggest that pre-industrial America did not feature significant regulation. Indeed, as scholars have shown, state and local governments imposed a broad array of regulations during that era. See, e.g., William Novak, The People’s Welfare (Univ. North Carolina Press 2000). However, industrialization, the decline of small artisans, and the rise of wage labor increased calls to regulate the increasingly complex market.
32 See, e.g., Suzanne Goldberg, “Equality without Tiers,” 77 So. Cal. L. Rev. 481 (2004).
33 See, e.g., Steven Calabresi & Larissa Leibowitz, “Monopolies and the Constitution: A History of Crony Capitalism,” 36 Harv. J. L. & Pub. Pol. 983 (2013).
34 See, e.g., Jack Balkin, “Abortion and Original Meaning,” 24 Const’l Comm. 291 (2007).
35 See, e.g., Victoria Nourse & Sarah Maguire, “The Lost History of Governance and Equal Protection,” 58 Duke L.J. 955 (2009).
36 Indeed, the modern Court’s occasional references to class legislation suggest that the Court might remain open to such a resurrection, if accomplished without the baggage that caused it to abandon that approach in the late 1930s. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (“Class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment.”). Romer is discussed in Chapter 4.
1 Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
2 The brief for the Moreno plaintiffs described one additional plaintiff’s situation.
3 Id. at 530 n. 3 (quoting Department of Agriculture regulations).
4 Technically, the Equal Protection Clause does not apply to the federal government, as it appears only in the Fourteenth Amendment’s sequence of restrictions on states; however, by 1973 it had been established that the Fifth Amendment’s Due Process Clause, which does apply to the federal government, includes an equality requirement identical to that in the Equal Protection Clause.
5 Moreno, 413 U.S. at 535 n. 7 (abandoned argument) & 535 (“increasing the difficulty”).
6 Id. at 538.
7 Justice Douglas agreed with the Court’s judgment on another ground.
8 Id. at 534–535.
9 See Moreno v. U.S. Department of Agriculture, 345 F.Supp. 310, 314 (D.D.C. 1972) (failing to identify the anti-fraud goals as ones that had been or might have been advanced).
1 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
2 The Court’s opinion referred to “retarded” persons. This book updates that usage, except when quoting from the opinion.
3 Scott McCartney, “Quiet Neighborhood Becomes Court Battleground,” Henderson Times-News, November 22, 1984, at 32.
4 Richard Carelli, “Texas Town Divided over Proposed Group Home,” Bowling Green (Kentucky) Daily News, May 5, 1985, at 23-B.
5 See Dan Bodine, “Proposed Retardation Facility Draws Fire,” Cleburne Times-Review, August 19, 1980, at 1; Dan Bodine, “Halfway House Filing Suit on Decision,” Cleburne Times-Review, October 15, 1980, at 1.
6 See Bodine, “Proposed Retardation Facility Draws Fire.”
7 Carelli, “Texas Town Divided.”
8 Id. (“I’m a coward,” and “The rationale began forming”); Brief for Petitioners in Number 84–468, 7 n. 5 in Cleburne 473 U.S. (council members’ connections with intellectual disability).
9 Cleburne, 473 U.S. at 455 (Marshall, J., joined by Brennan and Blackmun, JJ.).
10 Id. at 451 (Stevens, J., joined by Burger, C.J.).
11 William D. Araiza, “Was Cleburne an Accident?” 19 U. Pa. J. of Const’l Law (forthcoming 2017).
12 In addition to the flood evacuation concern, the city also expressed concern with the sponsoring organization’s legal responsibility for the actions of the would-be residents and with the population density of the proposed group home.
13 Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
14 United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).
15 Cleburne, 473 U.S. at 445–446.
16 This concern arose in other parts of the Court’s opinion as well. See id. at 442–443.
17 See, e.g., Palmore, at 433 (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
18 See Araiza, “Was Cleburne an Accident?” (discussing the Court’s decisional process in Cleburne).
1 Romer v. Evans, 517 U.S. 620 (1996).
2 Amendment 2 reads as follows:
No Protected Status Based 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 preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. (Id. at 624.)
3 Stephen Gascoyne, “Anti-Gay-Rights Law Leads to Colorado Boycott Calls,” Christian Science Monitor, December 3, 1992.
4 Joyce Murdoch & Deb Price, Courting Justice 454 (Basic Books 2001) (quoting Sue Anderson, member of the Board of the Anti–Amendment 2 group “Equal Protection”).
5 See, e.g., Linda Castrone, “Amendment 2 Aftermath: One Week Later Colorado Gays Take Stock of What Happens Next,” Rocky Mountain News, November 11, 1992, at 73; Kris Newcomer, “Gay Bashing Rises Since Passage of Amendment 2, Observers Say,” Rocky Mountain News, November 9, 1992, at 6.
6 See the video of the interview with Angela Romero at 2:25–55 at “Voices of American Law,” Duke University School of Law, http://web.law.duke.edu. “Voices of American Law” is an oral and documentary history project operated by Duke Law School, focusing on key Supreme Court cases. See http://web.law.duke.edu.
7 “Suicide Note Cites Vote on Amendment: Springs Man Dying of AIDS Said He Couldn’t Live in State That Bans Gay-Rights Protection,” Rocky Mountain News, November 11, 1992, at 9.
8 See the video of the interview with Kevin Tebedo at 1:54–2:16 at “Voices of American Law,” Duke University School of Law, http://web.law.duke.edu.
9 See Jones v. Bates, 127 F.3d 839 (9th Cir. 1997); California Democratic Party v. Jones, 984 F.Supp. 1288, 1291 n. 6 & 1302 (E.D. Ca. 1997); Gerberding v. Munro, 134 Wash. 2d 188, 197–198 (1998).
10 This approach does not even address any possible difficulties that grow out of the attempts of an initiative’s proponents to communicate with a particular sub-group of the population, for example, by targeted mailing or even targeted placement of online video messages. See, e.g., Derek Willis, “Online Ads Slow to Catch On as TV Reigns Supreme,” N.Y. Times, January 30, 2015, at A18 (discussing political campaigns’ evolving practice of selectively placing online ads on the screens of computer users with certain demographic and political profiles).
11 This material is reprinted in Nan Hunter & William Eskridge, Sexuality, Gender, and the Law (2nd ed., Foundation Press 2011), at 1523–1531.
12 See, e.g., Shawn Mitchell, “A Clash of Rights: Amendment 2 Could Force One-Sided ‘Agreements,’” Rocky Mountain News, October 18, 1992, at 127 (making this argument in an editorial in one of the major newspapers in Colorado).
13 To be sure, many readers today may have no difficulty concluding that at least some of these justifications—in particular, the immorality of same-sex intimacy—reflect simple dislike of gays and lesbians. However, the Court in 1986 had upheld the constitutionality of laws criminalizing same-sex intimacy—a fact the dissent in Romer stressed and that the majority in Romer ignored. Perhaps more to the point, one reading of the materials is, not that they called for government to adopt that anti-gay viewpoint, but instead that they argued that Amendment 2 would make it impossible for private parties to express and act on that view. This distinction can be overstated: Sometimes, government’s failure to protect a group from discrimination or disapproval can be understood as government endorsing that disapproval. Considering this question at this point would, however, take us far afield from my analysis.
14 See Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (citing Hunter v. Erickson, 393 U.S. 385 (1969)).
15 See Linda Hirshman, Victory: The Triumphant Gay Revolution 247 (Harper Collins 2012).
16 See the interview with Angela Romero.
17 See “Transcript of Oral Argument in No. 94–1039,” Romer v. Evans, at 6. The attribution of this question to Justice O’Connor is from Murdoch & Price, Courting Justice, at 467.
18 The Court did not explicitly interpret Amendment 2 in this way and stated that it did not need to do so in order to strike it down. It did, however, express doubt about a contrary reading. See Romer, 517 U.S. at 630–631.
19 Id. at 633.
20 Id. at 635. Somewhat relatedly, one prominent scholar writing immediately after Romer suggested that the Court had applied the principle underlying the Constitution’s Bill of Attainder Clause—the constitutional prohibition on Congress simply decreeing a person to be guilty of a crime. Akhil Reed Amar, “Attainder and Amendment 2: Romer’s Rightness,” 95 Mich. L. Rev. 203 (1996).
21 The Court also rejected the state’s law enforcement resource conservation argument on the same grounds. See Romer, 517 U.S. at 635.
22 The original term “Kulturkampf”—cultural struggle—referred to Prussian prime minister Otto von Bismarck’s campaign against Roman Catholicism in the 1870s.
23 See Bowers v. Hardwick, 478 U.S. 186 (1986); see also Susannah Pollvogt, “Forgetting Romer,” 65 Stan. L. Rev. Online 86 (2013) (criticizing Bowers but arguing that its precedential force rendered Romer’s analysis less coherent than it otherwise could have been).
24 Lawrence v. Texas, 539 U.S. 558 (2003).
25 See Romer, 517 U.S. at 644 (“Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval . . . that we held constitutional in Bowers [v. Hardwick (1986)].”).
26 Cf., e.g., Kitchen v. Herbert, 961 F.Supp.2d 1181, 1209 (D. Utah 2013) (striking down Utah’s voter-enacted prohibition) with DeBoer v. Snyder, 772 F.3d 388, 409 (2014) (upholding several voter-enacted bans on same-sex marriage).
27 Steven Smith, “The Jurisprudence of Denigration,” 48 U.C. Davis L. Rev. 675 (2014). The case, United States v. Windsor, 133 S.Ct. 2675 (2013), is discussed in the next chapter.
28 Edmund Burke, Speech to the Electors of Bristol (November 3, 1774), reprinted at The Founders’ Constitution ch. 13, document 7 (Philip B. Kurland & Ralph Lerner eds., Univ. Chicago Press 1987; online publication 2000), http://press-pubs.uchicago.edu.
29 Indeed, it is telling that judges’ and scholars’ concern about popular lawmaking through initiatives has been expressed through the constitutional provision by which Congress guarantees to every state “a republican form of government.” Former Justice Hans Linde of the Oregon Supreme Court has been particularly notable in expressing this concern. See, e.g., Hans Linde, “Who Is Responsible for Republican Government?” 65 U. Colorado L. Rev. 709 (1994).
30 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985); Reitman v. Mulkey, 387 U.S. 369 (1967). Reitman is discussed in Chapter 7.
31 Lawrence v. Texas, 539 U.S. 558 (2003).
32 For a detailed discussion of the facts of Lawrence, see Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas (W. W. Norton 2012).
33 Lawrence, 539 U.S. at 580 (O’Connor, J., concurring in the judgment).
1 United States v. Windsor, 133 S.Ct. 2675 (2013).
2 Throughout the rest of this book, references to DOMA should be understood as references to Section 3 of that law, unless the context makes clear otherwise.
3 Ariel Levy, “The Perfect Wife,” New Yorker, September 20, 2013.
4 The Dutch law was enacted in late 2000 and took effect in 2001.
5 Windsor, 133 S.Ct. at 2692 (2013).
6 Id. at 2696.
7 Id. at 2694.
8 Id. at 2708.
9 The use of this term to describe animus is from Susannah Pollvogt.
1 Public Law 42–32, 17 Stat. 13.
2 Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
3 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). In Griffin the Court had hedged on the question whether the required animus could be based on something other than race. Bray did not answer that question, since it stated that the plaintiffs had not demonstrated any other type of class-based animus.
4 Bray, 506 U.S. at 269–270 (emphasis in original).
5 In Bray, for example, the Court understood such “objectively invidious” intent to include a romantic paternalism that prevented women from entering occupational fields that were deemed inappropriately “aggressive” for them.
6 Frank Easterbrook, “Some Tasks in Understanding Law through the Lens of Public Choice,” 12 Int’l Rev. of Law & Econ. 284 (1992).
7 LeClair v. Saunders, 627 F.2d 606 (2nd Cir. 1980).
8 Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
9 Geinosky v. Chicago, 675 F.3d 743 (7th Cir. 2012).
10 To be sure, in its first encounter with the class-of-one theory the Court expressly rejected the argument that subjective ill will was a necessary part of a class-of-one claim. See Olech, 528 U.S. at 565. Justice Breyer expressed concern with the Court’s view on this point. See id. at 565 (Breyer, J., concurring in the result). Perhaps even more tellingly, though, lower courts after Olech often continued to insist that class-of-one plaintiffs demonstrate such ill will—if not as a matter of constitutional law, then at least as a matter of providing adequate proof to withstand a defendant’s summary judgment motion. See, e.g., William D. Araiza, “Constitutional Rules and Institutional Roles: The Fate of the Equal Protection Class of One and What It Means for Congressional Power to Enforce Constitutional Rights,” 62 SMU L. Rev. 27, 53 (2009).
11 The constitutional requirement that Congress keep a “journal” of its proceedings may reflect an expectation that congressional members would record the reasons for their votes—and perhaps an implied requirement that they do so. Thanks to Evan Zoldan for this insight.
12 See the discussion in Chapter 4 of this book.
13 McCleskey v. Kemp, 481 U.S. 279, 296 (1987).
1 Washington v. Davis, 426 U.S. 229 (1976).
2 Some scholars have suggested that the Court’s later pronouncements on the intent requirement have at times (although not consistently) sharpened the intent requirement into an insistence that the plaintiff prove the actual, subjective intent of government decision makers, thus creating ambiguity with regard to the meaning of “discriminatory intent.” See, e.g., Sheila Foster, “Intent and Incoherence,” 72 Tulane L. Rev. 1065, 1084–1085 (1998); Ian Haney-Lopez, “Intentional Blindness,” 87 N.Y.U. L. Rev. 1779 (2012). For our purposes we do not need to enter the debate into how the Court’s discriminatory intent jurisprudence has evolved since Arlington Heights (Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252 (1977)). Instead, we can assume that the Court’s intent jurisprudence does in fact allow for a more holistic, “constructed” intent, rather than insisting on a narrower understanding focusing on the subjective will of the government decision maker. This assumption serves our purpose of using the Court’s original understanding of intent doctrine to craft an analogous animus doctrine, even if that original understanding has changed. Indeed, if that understanding has changed, then there may be room to argue that the Court’s approach to animus is inconsistent with that evolution and, thus, raises questions about the correctness of that evolution.
3 Gomillion v. Lightfoot, 364 U.S. 339 (1960).
4 Id. at 341.
5 See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (rejecting the argument that the foreseeability of a law’s disparate impact establishes that the legislature necessarily acted intentionally); id. at 279 n. 25 (recognizing that such foreseeability remains relevant to the issue of the legislature’s intent).
6 Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
7 Id. at 266–268.
8 See Anatole France, The Red Lily (Le lys rouge) 95 (W. Stephens trans. 6th ed., Dodd, Mead 1922).
9 Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 229 (1964). The Court’s references to “deliberation” and “speed” are to its decision in the follow-on case to Brown v. Board of Education (347 U.S. 483 (1954)), where the Court directed that local school districts act with “all deliberate speed” to desegregate their schools (Brown v. Board of Education, 349 U.S. 294 (1955). The Court issued that mandate in 1955, a decade before its decision in Griffin.
10 Reitman v. Mulkey, 387 U.S. 369 (1967).
11 It had earlier applied the disparate impact factor, noting that the town’s rejection of the housing project would affect racial minorities more than whites. It had also noted the long-standing nature of the town’s zoning policy.
12 See, e.g., Siobhan Somervile, “Scientific Racism and the Emergence of the Homosexual Body,” 5 J. Hist. Sexuality 243 (1994).
13 See Arlington Heights, 429 U.S. at 257–258.
14 Indeed, one commentator has criticized what she views as the overly focused nature of this inquiry. See Sofia Martos, “Coded Codes: Discriminatory Intent, Modern Political Mobilization, and Local Immigration Ordinances,” 85 N.Y.U. L. Rev. 2099 (2010).
15 Arlington Heights, 429 U.S. at 269.
16 See Dan Bodine, “Proposed Retardation Facility Draws Fire,” Cleburne Times-Review, August 19, 1980.
17 See Richard Carelli, “Texas Town Divided over Proposed Group Home,” Bowling Green (Kentucky) Daily News, May 25, 1985.
18 Justice Stevens did not participate in the case. Justice Marshall, joined by Justice Brennan, concurred in part, and in particular agreed with the majority’s enumeration of those factors. He disagreed, though, with the majority’s decision to apply those factors to the case before it; instead, he would have remanded the case to the lower court for it to apply those factors in the first instance. Perhaps ironically, it was Justice White, the author of Washington v. Davis, who dissented. But even he did not disagree with those factors on their own merits; instead, he would have remanded the case to the lower court for it to apply Davis’s holding as it thought best, since the lower court had decided the case before Davis was decided.
1 Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016).
2 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
3 A careful reader might note that the Michigan, Texas, and Richmond cases involved situations in which the government’s use of race was apparent on its face—that is, they did not involve situations in which an ostensibly neutral law was found to have been motivated by an intent to classify on the challenged ground. But this distinction does not make a difference for our purposes. The cases discussed in the text make clear that not all government use of race is necessarily unconstitutional. Whether that use of race was explicit, as in the Michigan, Texas, and Richmond cases, or covert is technically irrelevant to this point.
To be sure, overt discrimination may (ironically) be more easily defensible as a practical matter. This might be the case because race and sex discrimination demand such convincing justifications that it might be difficult for the government to begin by denying that it had discriminated on that ground and then, after being rebuffed, pivoting and suddenly providing compelling justifications for exactly that type of discrimination. Nevertheless, the formal structure of the inquiry does not turn on whether the discrimination is facial or covert.
4 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985).
5 See Timothy Zick, “Angry White Males: The Equal Protection Clause and ‘Classes of One,’” 89 Kentucky L.J. 69, 91 (2000–2001).
6 United States v. Carolene Products, 304 U.S. 144 (1938). Justice Lewis Powell once called Footnote 4 “the most celebrated footnote in constitutional law.” Lewis Powell, “Carolene Products Revisited,” 82 Columbia L. Rev. 1087 (1982).
7 See, e.g., United States v. Windsor, 133 S.Ct. 2675, 2716 (2013) (Alito, J., dissenting) (“The modern tiers of scrutiny . . . are a heuristic to help judges determine when classifications have [the] fair and substantial relation to the object of the legislation” that is “the central notion” of equal protection jurisprudence.).
8 See Richard H. Fallon, Jr., Implementing the Constitution 61 (Harvard Univ. Press 2001) (“[T]he American constitutional tradition has long recognized a judicial authority, not necessarily linked to any specifically enumerated guarantee, to invalidate truly arbitrary legislation.”).
9 Most notably, Justice Stone wrote a letter to Judge Irving Lehman the day after Carolene Products was decided, expressing concern about the growing racial and ethnic intolerance in the world. See Alpheus Thomas Mason, Harlan Fiske Stone, Pillar of the Law 515 (Viking 1956).
10 See, e.g., Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Mathews v. Lucas, 427 U.S. 495 (1976) (legitimacy). Not all of these considerations resulted in a grant of suspect class status. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) (rejecting heightened scrutiny for age discrimination); Cleburne (rejecting such scrutiny for intellectual disability discrimination).
11 See Cleburne, 473 U.S. at 450 (“The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.”).
12 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
13 Id. at 493.
14 See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980) (Stevens, J., dissenting) (describing the efforts of a group of congresspersons to ensure that their constituents received “a piece of the action” via a race-based set-aside for federal construction projects).
15 Department of Agriculture v. Moreno, 413 U.S. 528, 534–535 (1973) (second set of italics added).
16 Susannah Pollvogt, “Unconstitutional Animus,” 81 Fordham L.Rev. 887, 904 (2012).
17 Id. at 930; emphasis added.
18 Dale Carpenter, “Windsor Products: Equal Protection from Animus,” 2013 Supreme Court Review 183, 232.
1 As I have already noted, sometimes such disparate impact may be so severe as to be, in the Court’s words, “unexplainable on grounds other than” the ground on which that disparate impact exists (for example, race). See Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252, 266 (1977). We can leave this detail aside.
2 Analogous, although not identical, burden shifting has long been a principle of federal statutory employment non-discrimination law. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
3 To be sure, many scholars resist this assumption. For example, one strand of academic thinking maintains that denials of equal protection consist not just of intentional deprivations of equal treatment but also of governmental failures to actively consider the interests of particular groups when making decisions. Such failures may not be describable as “intentional” discrimination in the sense Davis (Washington v. Davis, 426 U.S. 229 (1976)) and Arlington Heights assume. The correctness of this and other approaches to equal protection is far beyond the scope of this book, which takes the intent requirement as a given and builds an animus doctrine consistent with it.
4 Again, this statement assumes the correctness of the intent requirement. Many scholars resist this assumption. See supra note 3.
5 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256; 279 (1979).
6 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding the University of Michigan Law School’s use of race in its admissions decisions).
7 Daniel Conkle, “Evolving Values, Animus, and Same-Sex Marriage,” 89 Ind. L.J. 27 (2014) (“insulting and disrespectful”); Steven Smith, “The Jurisprudence of Denigration,” 48 U.C. Davis L.Rev. 675 (2014). See also Brief of Amici Curiae Steven G. Calabresi, Daniel O. Conkle, Michael J. Perry, and Brett G. Scharffs in Support of Certiorari and Opposing a Ruling Based on Voters’ Motivations in No. 14–124, Kitchen v. Herbert, 2014 WL 4380924, at 2 (urging the Supreme Court to grant review in a same-sex marriage case in order to hold that voter-enacted same-sex marriage bans are not based in animus, an accusation the amici described as “unfair” and one that “violates the integrity and aspirations of our shared political discourse”). Similarly, another prominent scholar, defending the Court’s result in the 2015 case striking down state-law same-sex marriage bans, felt compelled to defend the Court against the claim that it was accusing same-sex marriage opponents of acting out of “bigotry.” Carlos Ball, “Bigotry and Same-Sex Marriage,” 84 UMKC L. Rev. 3 (2016).
8 Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).
9 United States v. Windsor, 133 S.Ct. 2675, 2708 (Scalia, J., dissenting).
10 See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion) (accepting the argument that “sex discrimination” in federal employment discrimination law includes discrimination based on gender stereotyping).
1 Rogers v. Lodge, 458 U.S. 613 (1982).
2 Reitman v. Mulkey, 387 U.S. 369 (1967).
3 Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252, 270 (1977).
4 Indeed, it is worth noting that the Court cast its conclusion about intent in terms of whether “the evidence . . . warrant[s] overturning” the lower court’s “findings” about intent. Leaving aside the implication that an intent “finding” is fundamentally factual, the Court’s language casting its decision as one where the evidence did not warrant overturning those lower court findings suggests that the intent question is one whose answer is primarily entrusted to the trial court that hears the evidence most directly and can thus weigh it most accurately. Id. at 270.
5 To be sure, Justice O’Connor’s concurrence in Lawrence (Lawrence v. Texas, 539 U.S. 558 (2003)) did describe the Court’s approach in these cases as implementing heightened rationality review. But the majority opinions she described did not themselves do so.
6 The government’s Supreme Court brief in Moreno cited statements by congresspersons expressing concern over fraud perpetrated by unrelated persons cohabiting and living off food stamps. See Brief for the Appellants in No. 72–534, U.S. Department of Agriculture v. Moreno, 1973 WL 173826, at 15–16.
7 City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). The full quote is provided at the start of Chapter 8.
8 Recall from Chapter 5 that the Court did, at the end of its opinion, state, without analysis, that no legitimate interest “overcame” the injuries DOMA intentionally imposed.
1 Matthew Staver is the counsel for Liberty Counsel, a conservative litigation and policy organization. The quotation comes from “Many Hurdles Ahead for Transgender Rights Movement,” USA Today Online, December 14, 2013, www.usatoday.com.
2 Chase Strangio is a lawyer for the American Civil Liberties Union who focuses on lesbian, gay, bisexual, and transgender issues. The quotation comes from Deborah Sontag, “Once a Pariah, Now a Judge: The Early Transgender Journey of Phyllis Frye,” N.Y. Times, August 29, 2015, www.nytimes.com.
3 For a roughly analogous statement from an important constitutional law treatise of the police power era, see Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 16–17 (1st ed., Little, Brown 1868) (“[T]here may be discriminations between classes of persons where reasons exist which make them necessary or advisable,” such as laws establishing an age of majority and barring minors from entering into contracts, “but no one would undertake to defend upon constitutional grounds an enactment that, of the persons reaching that age, those possessing certain physical characteristics, in no way affecting their capacity or fitness for general business or impairing their usefulness as citizens, should remain in a condition of permanent disability.”).
4 Because the District of Columbia is a federal government institution, the claim was brought under the Fifth Amendment’s Due Process Clause, rather than the Fourteenth Amendment’s Equal Protection Clause, the latter of which applies to states but not the District of Columbia. But the Court has understood the former, which does apply to the federal government, to include an equality component equal in scope and content to the Equal Protection Clause.
5 See, e.g., Constantina Safilios-Rothschild, “Prejudice against the Disabled and Some Means to Combat It,” in Social and Psychological Aspects of Disability 261, 265 (Joseph Stubbins ed., University Park Press 1977).
6 See Lawrence Solum, “Legal Theory Lexicon: It Takes a Theory to Beat a Theory,” Legal Theory Blog, October 21, 2012, http://lsolum.typepad.com.
7 In Obergefell (Obergefell v. Hodges, 135 S.Ct. 2584 (2015)), Justice Kennedy rejected the dissenters’ call for more public debate on same-sex marriage, noting in part the wave of same-sex marriage cases that were decided after Windsor (United States v. Windsor, 133 S.Ct. 2675 (2013)), many of which relied on Windsor’s reasoning.
8 For an example of one commentator’s personal reflection on his experience of such feelings, see Frank Bruni, “Sex, Lies, and Houston,” N.Y. Times, November 8, 2015, Sunday Review section, at 3, www.nytimes.com.
9 Indeed, in his Romer dissent Justice Scalia remarked on the battle over how to understand anti-gay opinion, arguing that it should be fought exclusively in the political and social arena rather than through constitutional litigation (even if Amendment 2 made that fight much harder for one side by enshrining the other side’s position in the state constitution). See Romer v. Evans, 517 U.S. 620, 646 (1996) (Scalia, J., dissenting).
10 See, e.g., Christopher Leslie, “Creating Criminals: The Injuries Inflicted by ‘Unenforced’ Sodomy Laws,” 35 Harv. Civ. Rights-Civ. Liberties L. Rev. 103, 154–156 (2000).
11 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 464 (1985).
12 See, e.g., Steven Smith, “The Jurisprudence of Denigration,” 48 U.C. Davis L. Rev. 675 (2014).
13 Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997).
14 The wording in this sentence matters because this case came to the court “on the pleadings”—that is, before there had been a definitive determination of the actual facts.
15 E.g., Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) (holding that a lesbian had adequately alleged that the local police has a policy of not enforcing protective orders benefiting lesbian victims of domestic violence and that, if proven, the existence of such a policy would violate equal protection).
16 Leslie, “Creating Criminals.”
17 Lofton v. Secretary of Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004).
18 Given that this case arose in the mid-1990s and was decided in 2004, when only Massachusetts had instituted same-sex marriage, and given that Lofton did not challenge Florida’s marriage ban, it is unsurprising that Florida cited the marital preference as well as the mother/father preference.
19 Id. at 818 (quoting Heller v. Doe, 509 U.S. 312, 320–321 (1993)).
20 Art Swift, “Most Americans Say Same-Sex Couples Entitled to Adopt,” poll, May 30, 2014, www.gallup.com (finding that, as of 2014, 63 percent of Americans thinks same-sex couples should be allowed to adopt children, as compared with 28 percent in 1994).
21 A state court, relying on state constitutional equality grounds, ultimately struck down the law. Florida Department of Children and Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. App. 2010). Thanks to Katie Eyer for pointing this out.
22 See Bruni, “Sex, Lies, and Houston.”
23 See, e.g., Lauren Fox, “GOP Leaders Still Oppose ENDA,” U.S. News and World Report, June 16, 2014, www.usnews.com (noting House Republican leadership’s opposition to employment non-discrimination legislation for gays and lesbians on the grounds that it is “unnecessary” and “would provide a basis for frivolous lawsuits”). For polling suggesting that a majority of Americans have supported workplace non-discrimination for decades, see Gallup, “Gay and Lesbian Rights,” poll, n.d., www.gallup.com.
24 To be sure, such dislike or disapproval might warrant legal protection to the extent those feelings are themselves constitutionally protected—most notably, as expressions of religious faith. Hence, it is not surprising to see that the battleground over gay rights has in fact largely shifted to the scope of the law’s recognition of such religiously based moral disapproval.
1 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
2 Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence is discussed in Chapter 4.
3 Obergefell, 135 S.Ct. at 2594 (“unique”) & 2601 (“keystone”).
4 Id. at 2602.
5 Id.
6 Justice Kennedy first used this description in Windsor. See United States v. Windsor, 133 S.Ct. 2675, 2694 (2013).
7 Justice Kennedy acknowledged a primary public-welfare argument made by defenders of same-sex marriage bans: that restricting marriage to opposite-sex couples was necessary in order to encourage such couples to marry when they accidentally procreated. But, echoing much of the lower court reaction to this argument, he dismissed it, observing that excluding same-sex couples from marriage had no effect on the willingness of such “accidentally procreating” couples to wed.
8 Obergefell, 135 S.Ct. at 2604 (emphasis added).
9 To be sure, the previous sentence evokes the “fundamental rights strand” of equal protection, in which a discriminatory denial of a fundamental right is subjected to careful scrutiny. This analysis is, in some ways, simply another version of the due process analysis the Court had performed in the previous part of its opinion. See, e.g., Erwin Chemerinsky, Constitutional Law: Principles and Policies 793 (3rd ed., Aspen 2006) (“Relatively little depends on whether the Court uses due process or equal protection as the basis for protecting a fundamental right.”).
10 Of course, the foundational statement of animus doctrine—Moreno’s statement that “a bare . . . desire to harm a politically powerless group” cannot serve as a legitimate government interest—does speak, explicitly so, to political powerlessness (Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)). But in practice, the Court has not explicitly focused on a group’s political powerlessness or its components, such as its history of discrimination, when applying that statement.
11 Indeed, one scholar has seen fit to attempt to rebut the argument that the Obergefell Court accused same-sex opponents of bigotry. See Carlos Ball, “Bigotry and Same-Sex Marriage,” 84 UMKC L. Rev. 3 (2016).
12 Obergefell, 135 S.Ct. at 2597 (“intimate choices”), 2603 (“men and women”), & 2599 (“dignity in the bond”).
13 Id. at 2597.
14 Indeed, in Lawrence Justice Kennedy quoted the portion of the seminal modern abortion rights case, Planned Parenthood v. Casey (505 U.S. 833 (1992)), which used “dignity” to characterize rights central to one’s personhood. Similarly, in Obergefell he described cases dealing with access to contraception as dealing with similarly important rights.
1 Nguyen v. INS, 533 U.S. 53 (2001).
2 Williamson v. Lee Optical, 348 U.S. 483 (1955).
3 See Oregon Department of Agriculture v. Engquist, 553 U.S. 591; 603–604 (2008) (considering a similar hypothetical).
4 See, e.g., Kenji Yoshino, “The Supreme Court 2014 Term—Comment: A New Birth of Freedom?: Obergefell v. Hodges,” 129 Harv. L. Rev. 147 (2015); Laurence Tribe, “Equal Dignity: Speaking Its Name,” 129 Harv. L. Rev. F. 16 (2015).
5 See Evan Zoldan, “Reviving Legislative Generality,” 98 Marquette L. Rev. 625 (2014).
6 See Victoria Nourse & Sarah Maguire, “The Lost History of Governance and Equal Protection,” 58 Duke L.J. 955, 983 (2009).
7 See Tribe, “Equal Dignity.”
8 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976).