Wednesday, October 01, 2014

Unconstitutional Animus: Carpenter Responds to Siegel

Guest Blogger

Dale Carpenter

This post is part of the Symposium on Unconstitutional Animus.

From Congress to state houses, many legislators opposing same-sex marriage have acted based on what they openly claimed were simple matters of right and wrong—morality. One traditional moral edict, as Professor Siegel notes in his contribution to this symposium, is that homosexuality is wrong, immoral, sinful, unnatural.  

What we call morality is guided by experience. Morals reflect human learning and history. They evolve. They adjust. They are critiqued and revised. Moral judgments often arise from an unstated and complicated calculation about harm.

Not every law prohibiting or limiting some activity for what are said to be moral reasons reflects animus against the people who engage in it. One might condemn as immoral the possession of guns, or running a casino, or using marijuana. That doesn’t make every effort to ban guns, to prohibit gambling, or to criminalize drug usage a product of animus against gun owners, gamblers, or drug users. Each of these enactments would have a plausible connection to concern about harm independent of ill will toward the people who engage in these acts. None of these prohibitions would run a serious risk that they were simply expressions of spite against the people who engage in the prohibited behavior.

But when experience and empirical learning demonstrate that the feared harm undergirding a “moral” view is baseless, a continued moral condemnation expressed in law is likely to be an animus-based act. It is a prejudice, an unthinking and anachronistic holdover from an earlier time.

The moral condemnation of homosexuality has typically rested on hysterical claims about homosexuality—claims I have argued were rife in the congressional debate over DOMA—that have turned out to be baseless. Experience and empirical learning have discredited myths about homosexuals as sick, maladjusted, contagious, subhuman, dangerous, and predatory. Same-sex couples have the same capacities and desires for love, affection, and commitment as opposite-sex couples.

To say that the moral condemnation of homosexuality enacted in a broad and unprecedented law like DOMA is impermissible animus is not the same as saying that all reasons for rejecting same-sex marriage are animus-based. In principle, a legislature may decline to pass same-sex marriage legislation in part because of uncertainty about the consequences of change to a social and legal practice as important as marriage. The legislature may prefer to take things slowly. A general preference for incremental change, when other indicia of animus are not present, is surely not animus. The converse is also true: merely reciting a preference for slow change (or morality) when other indicia of animus are present can’t exempt a law from constitutional attack.

As I see it, the focus of animus doctrine is not on the bad nature of the person who supports legislation. The issue in Windsor was not whether a belief in marriage as only the union of one man and one woman is bigoted. It was whether, in context, the affirmative decision by Congress in 1996 to select one class of potential future marriages for second-class status reflected animus against the persons entering those marriages.

This characterization of the Windsor holding may not ease the hurt feelings or quiet the indignation of traditional-marriage supporters, of course. But the insult to them, if an insult at all, is not unique to an animus holding. An alternative holding based on heightened scrutiny of sexual-orientation classifications would have informed them that traditional sexual morality is akin to race-based discrimination. A rational-basis holding resting on the irrelevance of the means (denying federal recognition to married same-sex couples) to the stated ends (inter alia, encouraging responsible procreation) would have suggested that they suffered a serious cognitive failure verging on insanity when they urged passage of DOMA.

So I’m not quite convinced, despite Professor Siegel’s argument, that delegitimizing anti-gay morality in constitutional law is a kinder rejection than calling out the government’s animus against gay couples. There is no nice way to tell people that policies they have fervently supported are unconstitutional.

Dale Carpenter is a Professor at the University of Minnesota Law School.  He can be reached at: dalecarp at

Unconstitutional Animus: Araiza Responds to Pollvogt

Guest Blogger

Bill Araiza

This post is part of the Symposium on Unconstitutional Animus.

First, let me thank Susannah for organizing this online symposium, on a topic that is becoming more and more central to the Court’s approach to equal protection.  I have a few quick and tentative reactions to her lead-off post.

I think Susannah is right that a finding of animus at least sometimes triggers a shift of the burden of proof.  Cleburne is the clearest example of this phenomenon; as readers will likely recall, the Court in that case implied that it had searched the record for evidence supporting the challenged government action – thus suggesting that the government bore the burden of demonstrating the requisite rational relationship to a legitimate interest.  Other Supreme Court cases, though, don’t seem to me to reflect that shift.  Most notably, as she notes, the Court in Windsor did not seriously engage in testing DOMA against the interests asserted by its defenders.

More conceptually, I wonder about her suggestion that animus should merely trigger heightened review.  If in fact a government action is infected by animus (eliding, until the paragraph below, how much “infection” is required), then it seems to me that there’s an argument for finding it invalid simply on the strength of that conclusion.  As I will note in my own post, the modern Court’s concern about animus can be analogized, if only generally, to the late nineteenth/early twentieth century Court’s concern with “class legislation.”  Perhaps even more remotely, it can also be analogized to the framers’ concerns with factional capture of the legislative process.  If the analogy holds (and it might not), then an action’s infection with animus should doom it, just as a conclusion that a statute constituted class legislation did during the Gilded Age/Lochner Court.

The problem with this idea arises from the phenomenon of mixed motives.  As Susannah notes, it is quite possible that a statute will feature “some” evidence of animus.  Susannah’s analysis would have a court respond to such evidence by performing heightened review of the type she describes.  The idea, I assume, is that such heightened review will, to use the Court’s words from Croson, “smoke out” statutes that “really” (my word) reflect animus.  If I’m reading her correctly (and I might not be), then she and I don’t necessarily disagree that animus should doom a statute; instead, we simply disagree on how one finds animus. 

But maybe we disagree more than I think.  For example, if a court finds some evidence of animus, but concludes that the law passes rational basis review, I would think that she would have the court uphold the law, even if the evidence of animus was staring the court in the face.  In that case, a law would, in a very real way, reflect animus, yet she would favor upholding it.  I’m not sure I would.

Bill Araiza is a Professor of Law at Brooklyn Law School.  He can be reached at: bill.araiza at

Tuesday, September 30, 2014

The Revolt Against Leiter

Brian Tamanaha

Brian Leiter, in his own words:
I am the editor of the PGR; I am also one of the leading Nietzsche scholars in the world, a law professor, a New Yorker with limited toleration for the fools our profession breeds, a leading figure in legal philosophy, a leading philosophy blogger, a devoted teacher and mentor (defamation of me has grown so common on this score that I've taken to putting my evaluations on-line), a husband, a son, a father of three, a longstanding opponent of cyber-harassment based on gender and race, and a defender of academic freedom and the rights of everyone from Steven Salaita to John Yoo to speak freely about matters of public concern without state sanction.
Leiter is being modest, for he might have added, owing to his blogging and rankings, he is one of the most influential people in academic philosophy and in legal academia—an unmatched feat of dual influence.

But a revolt is taking place in one of his domains. In a short period, 500 philosophers (and counting) from around the world have signed a Statement of concern about Leiter’s conduct, which states in part:
The undersigned members of the philosophical community have decided to decline to volunteer our services to Leiter's PGR. While we recognise that there are other ways to condemn Professor Leiter's behaviour and to support our colleague, we think the best choice for us involves publicly declining to assist with the PGR. We cannot continue to volunteer services in support of the PGR in good conscience as long as Brian Leiter continues to behave in this way.

We feel that we need to consider very carefully what kind of example we are setting for graduate students, and for philosophers across the whole discipline, when something like this happens. Tolerating this kind of behaviour signals to them that they can expect the same in their own professional lives. We wish to set a clear example of how to respond appropriately but firmly.
(PGR is a ranking of philosophy programs run by Leiter with input from other philosophers.) The immediate prompt for the Statement was Leiter’s interaction with Professor Carrie Ichikawa Jenkins. The day after she became a full professor, Jenkins announced a pledge to conduct herself in a professional manner, including the following:
. In my professional capacity, I will treat other philosophers with respect.
• In particular, I will treat other philosophers more junior and/or professionally vulnerable than myself with respect.
• I will not make negative personal comments about individual philosophers in professional contexts.
• If I disagree with someone’s work or ideas, I will find ways to express that disagreement without suggesting the person is unintelligent, lacking in credibility, unfit to be a philosopher, or otherwise undeserving of respect.
• I will not treat other philosophers or their work in ways that are belittling, trivialising, and/or exclusionary.
In response to her post, Leiter sent Jenkins an email in which he called her a “sanctimonious asshole,” and issued this threat: “Also, calling me “unprofessional” is probably defamatory per se in Canada, so I’d suggest you stick to “unethical” (since “ethical” as we all know has no cognitive content). It may be in the US too, I haven’t asked my lawyer yet, but I will.” (Note that Leiter is not mentioned in Jenkin’s post, and her statements are pledges about her own future conduct.)

While the Statement—signed by 500 philosophy professors (and counting)—cites this particular incident, it makes clear that the objection is to a pattern of conduct by Leiter.

Leiter’s response to the revolt is that he is the victim of a “smear campaign” by people angry at his ranking (the PGR). His critics insist, however, “this is not primarily about the PGR; it’s about what many of us perceive as Leiter’s inappropriate behavior on a large number of occasions.” “He systematically resorts to aggressive, offensive and intimidating behavior against those who dare express views different from his own, both in public and in private correspondence, often targeting junior colleagues and others who can’t ‘compete’ with his power and influence.”

A comprehensive archive of links to this controversy—including an article in the Chronicle of Higher Education, as well as Leiter’s posts on these events—can be found here.

Leiter is quoted in the press and law blogs as an authority on legal education, and in a recent National Jurist poll he was voted one of the most influential legal educators in the country.

Addendum: Professor Leiter requested that I include his response:

REPLY FROM LEITER: There are presently 550 evaluators nominated for the 2014 philosophy rankings; of these about 40 or 45 have signed the "boycott" statement to which prof. Tamanaha links. Since the signatures were solicited by Prof. Richard Heck (who last tried to torpedo the philosophy rankings in 2001 with another petition), it is perhaps not surprising that he did so with false statements about the interchange with Prof. Carrie Jenkins. The actual sequence of events was as follows. On July 1, I posted a sharp critique of some utterly misleading rankings produced by Prof. C. Jennings (not Jenkins), a tenure-stream faculty member at UC Merced. She quickly started revising it after I called her out. On July 2, other blogs began attacking me for criticizing Jennings. Later, on July 2, Prof. Catarina Novaes also joined the criticism, pointing me to the response by Carrie Jenkins, which she characterized, obviously correctly, as “reacting to what many perceived as Brian Leiter’s excessively personalized attack of Jennings’s analysis.” Even one of Jenkins’s close friends has admitted to me what was obvious at the time, namely, that her post was aimed at me. I had some unpleasant exchanges on social media with Jenkins prior to this as well, but as I said in the blog post to which you linked, I should have cooled off before sending my derisive e-mail. The release of the e-mail by longtime opponents of my philosophy rankings was timed to derail the 2014 rankings.

Animus versus Moral Opposition: Material and Expressive Considerations

Guest Blogger

Neil S. Siegel

This post is part of the Symposium on Unconstitutional Animus.

Some 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?”

Others 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 homosexuality.  

Some may think that the outcome of same-sex marriage litigation turns on this question.  For example, in a New York Times column 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.

A proof of this assertion is straightforward:

Read more »

Monday, September 29, 2014

Persistent Questions About Animus

Guest Blogger

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 objective function?

(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 deciding Windsor.

Thus, all the questions about animus that existed before Windsor remain 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.”

Read more »

Symposium on Unconstitutional Animus

Guest Blogger

Susannah W. Pollvogt

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).

Susannah Pollvogt is an Associate Professor at Washburn University School of Law.  She can be reached at: susannah.pollvogt at

Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization


When 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).

In 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 here first.)

Conversely, 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.

Indeed, 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.

Why 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.
Read more »

Friday, September 26, 2014

Money Talks for Opportunistic "Free Speech" Havens

Frank Pasquale

I am thrilled to see my colleague Danielle Citron's book, Hate Crimes in Cyberspace, garner so many positive reviews and mentions. Katharine Quimby makes a great point about Citron's work in the Guardian today:
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.

The Invention of Low-Value Speech

Andrew Koppelman

Here’s 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.

The fake 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.”

The 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.”

Lakier writes:

“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 historical practice.”

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.

Murphy 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.

Lakier’s piece should definitively put this dishonest bit of doctrine to rest.