"We know better"

[Eugene Volokh]

I wrote:

> >     It seems to me that, if one confronts the Court's decisions about
> > creationism, the Court is saying the following to supporters of the
> > laws that were struck down (my characterization of the Court's
> > statements is intentionally provocative, but I hope ultimately fair):
> > [snip]
> >     2.  We also know what you're really after.  Though you might posit
> > some plausible secular purposes for your laws, we know your culture
> > and social reality and understand that your purposes are in fact
> > illegitimate.
> > [snip]

David Cruz responded:

> I wonder how much of Gene's sense of egregiousness turns on this piece of
> the attributed reasoning/declarations.  This point 2 also sounds, on some
> readings or to some ears, like what the Court said in Brown or Romer
> (substitute "nonstigmatizing" or "nonsubordinating" or "noninvidious" for
> "secular").  Now, each of these three cases (Brown, Romer, pick an
> evolution/creation case) might be distinguished and deemed right or wrong
> on the basis of other features of the opinions, or perhaps we might try
> to distinguish how (well) point 2 really fits each case.  But if we use
> to former route to distinguish, is point 2 then doing work?

    What upsets me about the Court's decisions is the aggregate of my
five (I think) points, but I agree that this is a big one.  How do I
distinguish my concern about these cases from my concern about the
other cases David cites?

    1)  As I mentioned in an earlier post, I think the search for the
"real purpose" under the Lemon test is even more fraught with risk of
judicial prejudice than in equal protection jurisprudence.  The
differences between impermissible religious purposes and permissible
secular purposes that have to do with religion -- accommodating
religious belief, preventing religious controversies, preventing
entanglement of government officials in religious debates, preventing
government expressions that might be viewed as disapproval of
religion -- are so metaphysical that assigning a law into Box A or Box
B is more likely a judgment about one's affection for the law, or
(worse) one's affection or sympathy for the lawmakers, than about any
objective facts about the lawmakers' real intentions.

    2)  The relevant cases here, though, are Hunter v. Underwood and
Guinn v. United States (the grandfather clause case), rather than
Romer or certainly Brown.  The Brown holding, if I recall correctly,
was defended by the Court as a facial-race-classification-plus-
effects case.  Today it might be decided as a facial-race-
classification-simpliciter case; in any event, I don't think the
Court had to think much about legislative intentions there.

    Romer, and (on this point) its kissing cousin Cleburne, did do
this sort of inquiry; but at least there the formal question was
(ostensibly) primarily the fit of the law to any claimed
justification, rather than the people's actual justification.  It's
easier to objectively judge the degree to which the law is over- or
underinclusive vis-a-vis a particular claimed interest than to
objectively determine the "real reason" for the law.

    Here's a hypo that I think highlights the distinction:  Say that
Colorado voters now re-pass a law that prohibits anti-sexual-
orientation-discrimination laws touching private employment,
education, housing, and public accommodations.  I think that under
Romer this would be upheld, because it's not particularly over- or
underinclusive relative to the goal of protecting private
associational rights and property rights; and I think a court wouldn't
try to determine whether the "real" reason is an "invidious" hatred
of homosexuals, or a permissible desire to protect associational
liberty.  The former inquiry is at least manageable, though it's a
complicated question of degree (how overinclusive is too
overinclusive?).  The latter inquiry is, I think, not manageable,
again because the difference between the supposedly impermissible and
the supposedly permissible justifications is mostly metaphysical.

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095