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.