Wednesday, February 05, 2020

Legislative Purpose for Discerning Meaning Versus for Invalidation

by Michael C. Dorf

My latest Verdict column discusses one potentially important aspect of Espinoza v. Montana Dep’t of Revenue, which was recently argued in the Supreme Court. Montana is one of many states with a constitutional provision forbidding aid to private religious schools. Accordingly, the Montana Supreme Court struck down a state statute that provided tax credits facilitating such aid. The statute it invalidated provided aid to secular as well as religious schools. Had the Montana Supreme Court invalidated the statute only as applied to religious schools, it would have likely violated the US Constitution's First Amendment, as construed by the Supreme Court in its application to the States via the Fourteenth Amendment--because SCOTUS precedents forbid states from excluding religious schools from otherwise neutral aid programs.

For what it's worth, I disagree with those SCOTUS precedents. I think states should have greater freedom than the Court allows them to apply strict principles of separation of church and state as a matter of state constitutional law. I would allow for what the Court has sometimes called "play in the joints" between Free Exercise and Establishment. But that's not my current concern with respect to Espinoza.

Espinoza presents at least two questions about illicit intent. One question is whether the Montana constitutional provision--which can be traced to anti-Catholic bias in the 19th Century--is currently valid, even assuming that it no longer reflects and is not being applied with anti-Catholic bias. A second and related question is whether illicit intent matters if there is no disparate impact. The Montana Supreme Court struck down the entire statute on its face; as a consequence, although religious schools do not receive any benefit from the tax credit, neither do secular schools; the state argues that such "leveling down" is a well-accepted response to illicit discrimination, so that in the wake of the Montana Supreme Court's ruling, the plaintiffs have no remaining claim.

My column points to lingering tension in the case law between illicit intent tests and the acceptance of leveling down. Using an example I first developed in a 2008 blog post, I hypothesize that in a world without a fundamental right to marry, a state that abolished the institution of marriage rather than extend the right to same-sex couples would violate equal protection, because the social meaning of leveling down in this circumstance would be illicit heteronormativity. I do not attempt to provide a comprehensive resolution to the question of whether and when leveling down should be permitted, content to surface the tension.

Here I want to add a thought about legislative purpose in a different context--that of discerning legislative meaning.

One familiar argument against illicit motive tests in constitutional law and beyond concerns the difficulty of discerning -- or, often more accurately, constructing -- the subjective intent of a multi-member body. Justice Scalia, critiquing that portion of the Supreme Court's Establishment Clause jurisprudence that condemns laws with the primary purpose of advancing religion, made the point this way in Edwards v. Aguillard, a case involving a Louisiana law that mandated the teaching of "creation science" in the public schools if evolution was taught:
a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.
Let's put aside the casual sexism ("mad at his wife") and the fact that Justice Scalia chose a particularly bad case to make his point; after all, given that "creation science" is, not to put too fine a point on it, complete bullshit, no legislator can have any permissible motive in mandating its teaching under any circumstances. But as a general matter, surely Justice Scalia had a point. Legislative motive will often be an after-the-fact construction, rather than a simple fact in the world. And in an important 2016 article in the Harvard Law Review, Professor Richard Fallon, in his words, "rationalize[d]" Scalia's argument.

But here's the thing. As I argued in a response (published in the Harvard Law Review Forum), Fallon's case rests on a rejection of the doctrine of double effect as set forth by philosopher Tim Scanlon; and rejecting double effect has potentially disruptive and far-reaching consequences for the law that Fallon does not consider; accordingly, I expressed reservations about the success of Fallon's rationalization of Scalia's argument.

Meanwhile, as Fallon himself noted, Scalia didn't have the courage of his own convictions. Despite his full-scale assault on invidious purpose tests in Edwards, Scalia later applied them. And so have other conservative Justices. As I note in my column, during the oral argument in Espinoza, Justice Alito offers the subjective-purpose test as a lifeline to the plaintiffs challenging Montana's use of its no-aid-to-religion constitutional provision.

But here's the other thing. Whereas Scalia and other conservatives have employed subjective motive tests (except where they didn't, e.g., to uphold Trump's Travel Ban, ahem!), they remain skeptical about legislative purpose for discerning the meaning of a statute. To summarize, modern textualists typically say that the subjective intentions of the legislature are ultimately unknowable and in any event unimportant for discerning what a statute means, but those same jurists, in evaluating a law's constitutionality, are confident that they can discern the legislature's motive in order to strike down a law as illicitly motivated.

Is there a justification for this difference? The short answer is no. Fallon uses textualist arguments against subjective intent for purposes of discerning legislative meaning interchangeably with arguments against illicit subjective intent as grounds for invalidation. Scalia did the same in Edwards. He says, without contextual qualification:
while it is possible to discern the objective "purpose" of a statute (i.e., the public good at which its provisions appear to be directed), or even the formal motivation for a statute where that is explicitly set forth (as it was, to no avail, here), discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task.
It's worth noting as an aside that that formulation gives to purposivists in statutory interpretation more than textualists usually concede: an objective purpose is all that we purposivists typically require. But putting that aside . . . uhm, aside . . ., the important point here is that the argument against subjective intentions, if persuasive in one realm, ought to carry over into the other.

As I note in the column, Ilya Somin fairly charges with hypocrisy those (conservative) justices who eschewed  a legislative purpose test in the Travel Ban case but appear willing to embrace it in Espinoza. (They did embrace it in Masterpiece Cakeshop.) The same charge can be leveled at the liberals for the opposite set of dispositions. I am suggesting here that there is a further charge of inconsistency available against those conservative justices who disregard legislative intent as ostensibly unknowable in statutory interpretation cases but are happy to invalidate laws on the basis of illicit subjective intent to disadvantage religion.


  1. I would argue that for purposes of the argument above, hypocrisy would only apply if in one case the legislative intent was described as generally unknowable, whereas in another case it was used explicitly. I know Scalia was guilty of this, but in the Travel Ban case the refusal was not a claim that legislative intent is unknowable, but more a decision that in the INS and national security realms, the court doesn't care about true intent, so long as a neutral reason is also provided.

    Either way, while I appreciate the desire for balance, I don't think the liberals can be legitimately accused of hypocrisy in applying a different legal standard in these two cases. The reason is that the liberals believed that purpose was relevant in both Masterpiece Cakeshop and the Travel Ban cases, but found no evidence of illicit intent in Masterpiece Cakeshop. That's not a difference in methods or legal standards, it's a different interpretation of how a consistent set of methods and legal standards apply in the particular case at hand.

    The result may be the same, in that the vote ultimately reflects the justices' policy preferences, but that doesn't necessarily mean there was hypocrisy in what legal standards were applied in the cases.

  2. Breyer and Kagan did join the majority in Masterpiece Cakeshop.

    The "purpose" part of the Lemon Test (noting it is unclear how much is left of it) did come to mind here including McCreary County v. American Civil Liberties Union of Ky. (invalid purpose).

    I think the basic lesson here is that illegitimate purpose will factor in when weighing discrimination claims in some fashion though the "purpose and effect" language that is at times used (such as the DOMA case) shows purpose in a vacuum isn't the rule.

  3. I think it's a bit misleading to credit the argument you describe Fallon making in a legal context to Scanlon. While I find this aspect (though little else) of Scanlon's views to be quite convincing it's ultimately only an argument about how individuals should determine what actions to take.

    As you note those considerations don't even extend to judging others (blame) in the moral context. In the legal context the question isn't how should a legislator decide what vote is morally best but how the law should respond to such a vote.

    Ultimately that question is a largely pragmatic and blame based judgement. So Scanlon's argument seems relevant only by analogy I’m the best case.

    Moreover, I’m sure Scanlon would happily allow that useful moral heuristics can depend on even that actor's intent, eg, if you realize you're acting out of spite, hate etc there's a good chance you're not acting morally right and you should be careful. As the law is essentially all a choice of heuristics (doesn't aim to apply divine justice) its even less clear how Scanlon's argument is supposed to apply.

    In short Fallon's unsupported assertion that if correct Scanlon's argument should apply to the 'legal justifiability of statutes' is totally unconvincing as a matter of phikosophical argument.

    Heck this isn't even a close call. It should be obvious to anyone versed in moral philosophy that you can't just read off moral principles for individuals and infer the law should do the same. That's why moral and political philosophy aren't the same subject.

    1. Just to be clear that was meant as agreement with your rejection of Fallon not criticism.

    2. This comment has been removed by the author.

  4. I'd add that I think there is a decent pragmatic reason for looking to 'purpose' when deciding to invalidate for illegitimate purpose and deciding meaning.

    Most importantly there is much less risk of drawing judges own policy prefs/values into play if the task is merely to check motives against a list of inappropriate features. The details of exactly why and to what end the legislators were motivated by prejudice against blacks doesn't matter (was the goal just to put them in their place, discourage mixed couples or chase blacks from the locale?). In contrast using intent to interpret a law can depend on any and every detail.

    The human tendency to assume that a rule was probably intended to deal with whatever associated problem you see as worst in the way you see as best doesn't affect the former case anywhere near as much as the later.

    Also athe public perception of illegitimate purpose is part of the harm if such laws and merely forcing that intent (or perceived intent) to be disguised is a win. There is no analogous concern when inferring meaning generally and a serious risk of incentives encouraging legislators to kick difficult questions to the court and this is particularly open to judges reading in policy preferences.

    1. Oops should have said but not for evaluating meaning.


Note: Only a member of this blog may post a comment.