Justin Marceau
This Post is part of the Symposium on Unconstitutional Animus
What are the constitutional
implications when a state singles out a particular industry’s whistleblowers
for criminal penalties? “Ag-gag” laws, as they are known, make criminals of the
modern day Upton Sinclairs by criminalizing undercover investigations on
agricultural operations. See, e.g., http://www.legislature.idaho.gov/legislation/2014/S1337.pdf . Along with a team
of terrific scholars and lawyers I am litigating a series of equal protection
and first amendment challenges to these state laws. A brief overview of the equal protection
litigation follows.
1. Animus in Ag Gag’s Legislative History.
The enactment of the ag gag laws was
preceded by considerable discussion about keeping animal rights groups out of
the relevant states, calling them terrorists, and expressing a desire to limit their
influence in the “court of public opinion.”
Even in much smaller doses, and with a
tone of moral disapproval rather than outright hostility, expressions of animus towards a politically unpopular group
have been fatal. See U.S. Dept. of Agriculture
v. Moreno, 413 U.S. at 534 (1973) (one legislator made limited statements); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432 (1985) (a few scattered legislative statements were
considered); U.S. v. Windsor, 133 S.
Ct. at 2675 (a single statement in House
Report). Moreover, Windsor reveals that the statute itself can be evidence of animus
if it imposes a unique disability on one political group, and you don’t
necessarily need a record of additional, extrinsic evidence of animus. http://www.nytimes.com/2014/08/05/opinion/gay-marriage-and-the-court.html?_r=2 (in Windsor “the
Supreme Court examined the dominant social meaning of the law apart from
anyone’s subjective intent”). Without
going into detail here, suffice to say, I am not aware of any legislative
record in a federal case that has more vivid and extensive evidence of animus.
2. Judicial and State Reaction to the
Animus Claims
As an initial matter, it is worth
noting that the federal judges reviewing motions to dismiss on these issues have
correctly recognized that the question of whether animus was a motivating
factor for a law is a factual question. Beyond this, however, there is considerable
disagreement about what role animus should play in the litigation.
First, the state defendants have reacted
dismissively to the suggestion that Windsor sheds light on the analytical framework for animus-based
laws, describing it as nothing more than a decision about federalism. Second, the state of Idaho took the position
that the laws making it a crime to engage in undercover investigations in one
industry but not others simply do not create a classification at all: “because
these prohibitions apply to all persons or entities, the sine qua non of an
equal protection claim—discriminatory classifications—does not exist.” Somewhat related, they argue that because the
law regulates primarily conduct, equal protection is not implicated.
To their credit, both of the federal judges
(Shelby-Utah; Winmill- Idaho) have substantially rejected these simplistic
caricatures of equal protection. Judge
Winmill, for example, wrote, “ALDF’s allegations arguably reveal an animus toward
animal-rights activists. And if ALDF’s allegations of animus prove true, the
Court must skeptically scrutinize any offered justifications for section
18-7042.”
3. Ag Gag Animus Jurisprudence
In this section I will offer some quick
reflections on two of the central arguments advanced against animus based
relief in these cases.
a. Ag Gag laws don’t classify or only
target conduct
Almost all laws create
classifications. A law regulating the
sale of filled milk warranted equal protection review seventy-five years ago, U.S. v. Carolene
Products, 304 U.S. 144 (1938), and so too does a distinction between
whistleblowers in the ag industry and whistleblowers in all other
industries. As Andrew Koppelman has
observed, even a “facially neutral law may nonetheless violate equal protection
if the disparate impact reflects a purpose to discriminate.”
A related and more interesting argument
is that the ag gag laws – by criminalizing whistleblowing actions– target conduct rather than status and thus fall
outside of equal protection scrutiny.
But an assertion that a challenged statute merely prohibits conduct
rather than creating a classification does not insulate the statute from
meaningful review. See Lawrence v. Texas, 539 U.S. 558, 583 (2003) (“[T]he State
maintains that the law discriminates only against homosexual conduct. While it
is true that the law applies only to conduct, the conduct targeted by this law
is conduct that is closely correlated with being homosexual.”); Romer v. Evans, 517 U.S. 620, 641 (1996) (Scalia, J.,
dissenting) (chastising the majority for extending full dress equal protection
to “laws merely disfavoring homosexual
conduct.”); Koppelman, 64 Case Wes. L.
Rev. 1, 8, n.41 (2014) (cataloguing examples of the same).
b. The view that all criminal laws are
based on animus
Although the judges presiding over the
ag gag litigation have denied motions to dismiss, at some points the denials
are less than full-throated. Most
notably, Judge Shelby explained that ag gag laws are criminal and not civil. In Shelby’s view, which seems to draw
inspiration from Justice Scalia’s dissents in Romer and Lawrence, criminal sanctions are inherently an expression of animus
towards the offender and thus apparently immunized from animus review. The issue is whether cases like Moreno, Windsor and Cleburne, all of which are civil cases, could logically be extended
to criminal statutes. This is a
thoughtful and interesting attempt to limit the role of animus, but on
reflection it is misplaced for a couple of important reasons.
First,
while Lawrence arises under due process, underlying this decision striking
down criminal sodomy laws across the
country is a concern about animus. As
Justice O’Connor wrote in concurrence, “When a law exhibits such a desire to
harm a politically unpopular group, we have applied a more searching form of
rational basis review to strike down such laws under the Equal Protection
Clause.” Lawrence, 539 U.S. at 580.
Criminal laws can and do trigger animus concerns (under equal protection
or due process or both).
Second,
it is important for courts and scholars to distinguish between permissible and
impermissible animus. Permissible animus
expresses condemnation for harmful conduct writ large, for example hostility
towards the act of rape or murder, or trespass.
Impermissible animus targets a politically unpopular group whose
existence and identity is independent from the conduct defined by the statute. Stated differently, while there is an
intuitive appeal to the suggestion that legislators surely act with contempt
for the pedophile when they enact statutory rape laws, the fundamental
difference is that this (appropriate or permissible) animus is based on the
disapproved conduct of offenders, not the group’s beliefs or way of being. It would be a serious mistake to equate permissible
animus towards murderers or rapists with animosity towards hippies living
together or animal rights activists and their investigations. It's acceptable for a legislature to have
animus toward someone because they
commit murder or trespass, but it is not okay to have animus towards a group
who might engage in conduct for a particular political reason. The
question is whether there is a politically salient, ideologically identifiable
group being targeted by the statute in question. It's not permissible for legislation to
reflect animus toward someone who trespasses for a particular political reason
and not toward other trespassers; or as Dale Carpenter has put it, “[t]he discovery of animus is instead an affirmative reason to
invalidate an otherwise constitutional law.”
Hippies, gays, and
animal rights groups are all politically unpopular groups. They have a
political identity that is often associated with certain conduct – hippies
might live together in communes and animal rights groups seek to discover and
disclose animal abuse. By contrast, to
suggest that those who commit a particular crime – all rapists, for example –
share a protected political ideology or union because they have engaged in
non-consensual sex is to conflate permissible animus towards discrete conduct
and impermissible animus towards groups (and their essential activities). Animus is impermissible when it targets a
politically unpopular group, whether the resulting law targets the group’s
existence or essential activities. Romer, 517 U.S. 620, 641 (1996) (Scalia, J., dissenting) (“there can
hardly be more palpable discrimination against a class than making the conduct that
defines the class criminal”). Animus towards harmful conduct qua conduct when
carried out by individual actors will generally be permissible animus. But when the law – civil or criminal –
targets a politically unpopular group’s conduct, the animus is
impermissible. The outcome in Moreno would not have been different if
the law at issue had been criminal in nature.
And because hippies are not an immutable class, Moreno is best viewed as an equal protection violation
arising out of impermissible animus with
regard to the conduct of hippies.
Impermissible animus targeting the status or conduct of animal rights
groups, no less than animus targeting hippies, violates equal protection.
Justin Marceau is a Professor at the University of Denver Sturm College of Law. He can be reached at: jmarceau at law.du.edu.