Intent and motive

A.E. Brownstein aebrownstein at UCDAVIS.EDU
Fri May 11 16:36:08 PDT 2001


I'm inclined to agree with Michael that the distinction between motive and
intent is not all that helpful. But I'm not sure that what makes
Establishment Clause cases, or Equal Protection cases, difficult is the
fact of collective decision making. At least if the decision making body is
relatively small, as is often the case for city councils and county and
school district boards, I think there is ample evidence to support a
conclusion of material unconstitutional motive/intent/purpose if two of
five board members, for example, express unconstitutional motives for
enacting a law or reaching an administrative decision. I think there are
lower court cases reaching such conclusions in one of the more neglected
areas involving unconstitutional motives -- cases involving
pre-condemnation downzoning.

What complicates this area, in my judgement, is the problem of multiple
motives. Courts are reluctant to conclude that the state acts for a
constitutionally impermissible motive when the same decision could have
been reached for constitutionally legitimate reasons. This may be common in
Establishment Clause cases because the religious speaker, music, ritual,
holiday, or practice often has some secular value or utility.This problem
is compounded by the fact that the Court provides States a causation
rebuttal (We would have enacted the same law anyway) defense in equal
protection cases. I assume a similar rebuttal would be available in Free
Speech and Establishment Clause cases.

I think the question of determining what constitutes a prima facia case of
invidious motive is actually easier than figuring out what constitutes
sufficient evidence that the State would have enacted the same law anyway.

Alan Brownstein
UC Davis


At 05:16 PM 05/11/2001 -0400, you wrote:
>I think the distinction between intent and motive is useful in
>conventional antidiscrimination law because we define those terms in a
>particular way -- it is intentional discrimination against women to
>exclude them from the workplace because of their gender whether the
>background motive is animus toward women or romantic paternalism.  But the
>distinction becomes a matter of semantics in the context of retaliatory
>discharge cases, and in the context of the EC.  With regard to the choice
>to invite a member of the clergy, I can frame the inquiry in terms of
>motive -- was the school motivated by the desire to proselytize, or by the
>desire to expose students to a variety of ideas -- or in terms of intent
>-- did the school invite the speaker because he was likely to proselytize,
>or because he was likely to expose students to a variety of ideas?  In the
>context of the intent inquiry, the background fact is the expected
>behavior of the speaker, and the intent question asks whether he was
>invited because of that expected behavior or for some other reason, or, to
>put the question differently, would he still have been invited had
>expectations of his behavior been different?
>
>The intent / motive distinction is equally malleable in the context of
>retaliation cases.  The background fact is the employee's statement, but
>motive inevitably comes into play; employers fire the employee who speaks
>at a city commission meeting only when the speech is perceived as harmful;
>retaliation cases simply do not happen when the employee praises the
>employer.  The motive is always punishment or revenge; I am unaware of
>benignly motivated retaliation in the workplace.
>
>I don't think the inquiry in EC cases is inherently more difficult than in
>antidiscrimination cases, even if conceived as an inquiry into motive.
>What seems more likely to complicate the inquiry in EC cases is the
>likelihood that the decisionmaker is a collective body rather than an
>individual.  That difficulty also arises in discriminatory intent claims
>under the fourteenth amendment when the decisionmaker is a city commission
>(Arlington Heights).  The Court has never to my knowledge decided the
>question of just what evidence would minimally suffice to prove
>discriminatory intent in a claim challenging a governmental decision,
>whether by a city commission or a state legislature.  Would the Price
>Waterhouse model, inferring discriminatory intent from statements by some,
>but not all or even a majority of the members of a collective decision
>maker, apply to claims against a school board?  I think not.  And that, I
>think, is the difficulty in so many EC cases.
>
>
>Michael R. Masinter                     3305 College Avenue
>Nova Southeastern University            Fort Lauderdale, Fl. 33314
>Shepard Broad Law Center                (954) 262-6151
>masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>
>On Fri, 11 May 2001, Volokh, Eugene wrote:
>
> >         I hate to introduce yet another mushy distinction, but I wonder
> > whether an inquiry into intent in the Equal Protection Clause context might
> > be somewhat more manageable (though this is probably just a matter of
> > degree) than motive in the Establishment Clause context.
> >
> >         In antidiscrimination rules, our question is whether a
> decisionmaker
> > acted because of his knowledge of a particular fact:  Did he discriminate
> > because the person was black?  Would he have acted otherwise had the person
> > not made this offensive statement?  It's not easy to tell these things, but
> > it's often possible.
> >
> >         I think it's harder, though, to separate out various possible
> > motives, which are the background purposes behind the person's
> actions.  For
> > instance, if antidiscrimination law asked whether the decisionmaker acted
> > out of "hatred for a particular race" as opposed to "affection for his own
> > race," that inquiry would be much harder than just the inquiry into whether
> > the decisionmaker acted based on the person's race:  I'm not sure how one
> > can plausibly disentangle these two motives, which may well coexist in the
> > person's mind, and which may sometimes subtly shade into each other.
> > Likewise, if First Amendment law asked whether the employer acted out of
> > "disagreement with the fired employee's opinions" as opposed to "belief
> that
> > the fired employee's opinions will eventually lead to harm," that inquiry
> > would be similarly hard, because the two underlying motivations so often
> > coexist, so often shade into one another, and thus require mindreading on a
> > scale beyond the normal one required when asking whether the person acted
> > because of the fired employee's statements.
> >
> >         Likewise, I think, for motivation inquiries under the Establishment
> > Clause.  We can often decide whether a government agent acted because of a
> > person's religion, as required by, say, the Larson v. Valente
> > antidiscrimination analysis.  But separating an impermissible motive of
> > "proselytizing religion" from the permissible ones of "exposing students to
> > an important world or national leader" or "helping students get along by
> > showing them other people's religions" or "teaching to students certain
> > secular messages, which we know the speaker is also planning to talk about"
> > or "preventing adverse publicity that might have resulted had we turned
> down
> > the opportunity" or even "showing students a fun time by doing something
> > really new" seems like a considerably more difficult inquiry.  Does this
> > make sense?
> >
> >         Eugene
> >
> >
> > > -----Original Message-----
> > > From: Michael MASINTER [SMTP:masinter at NOVA.EDU]
> > > Sent: Friday, May 11, 2001 6:26 AM
> > > To:   RELIGIONLAW at listserv.ucla.edu
> > > Subject:      Re: Dalai Lama visit irks lawmakers
> > >
> > > Why is determining intent here any different from determining intent in
> > > claims arising from the equal protection clause, the first amendment in
> > > retaliatory motive litigation, or in statutory antidiscrimination
> > > litigation?  We characterize a broad range of governmental conduct as
> > > constitutional or unconstitutional, or lawful or unlawful, based upon the
> > > intent of the governmental actor.  To suggest that such determinations
> > > cannot be made in establishment clause litigation seems to me to suggest
> > > that they cannot be made under the equal protection clause either; if
> that
> > > is true, then either the equal protection clause is toothless, or
> > > Washington v. Davis was wrongly decided.
> > >
> > > Michael R. Masinter                     3305 College Avenue
> > > Nova Southeastern University            Fort Lauderdale, Fl. 33314
> > > Shepard Broad Law Center                (954) 262-6151
> > > masinter at nova.edu                       Chair, ACLU of Florida Legal
> Panel
> > >
> > > On Thu, 10 May 2001, Bradley P Jacob wrote:
> > >
> > > > With all due respect, Marci, I think that this is an impossible
> approach
> > > to
> > > > implement.  If we're going to look at "purpose" ex ante, we have to get
> > > > inside the head of school officials to decide what their subjective
> > > intent
> > > > was in inviting the speaker.  The effort will likely include a bias
> > > against
> > > > Christian speakers, since in most parts of the country Christianity is
> > > the
> > > > only faith that most people will suspect as being the object of
> possible
> > > > pro-religious bias on the part of public officials.  As the Dalai Lama
> > > case
> > > > illustrates, at least in most areas it is hard to imagine a widespread
> > > > government plot to promote Buddhism.  Maybe it's different in Oregon.
> > > >
> > > > If the "purpose" analysis is done ex post, we not only have to decide
> > > > whether the speaker's words, on balance, constituted proselytizing, but
> > > also
> > > > whether the school officials expected that the speaker would give the
> > > type
> > > > of remarks that he/she actually gave.  And, whatever you decide, it's
> > > too
> > > > late to do anything about it, and the next case will be different
> on its
> > > > facts.
> > > >
> > > > The subjectivity is a big problem with Lemon's "purpose" prong, IMHO.
> > > >
> > > > You're right, Rick -- this beats grading exams.
> > > >
> > > > Brad
> > > > _______________________________
> > > >
> > > > Professor Bradley P. Jacob
> > > > Regent University School of Law
> > > > 1000 Regent University Drive
> > > > Virginia Beach, VA 23464-9800
> > > > Voice 757-226-4523
> > > > Fax 757-226-4329
> > > > Email bradjac at regent.edu
> > > > _______________________________
> > > >
> > > >  -----Original Message-----
> > > > From: Law & Religion issues for Law Academics
> > > > [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Marci Hamilton
> > > > Sent: Thursday, May 10, 2001 12:05 PM
> > > > To: RELIGIONLAW at listserv.ucla.edu
> > > > Subject: Re: Dalai Lama visit irks lawmakers
> > > >
> > > >
> > > > I sympathize with Rick's search for a rule that would make it
> easier for
> > > > religious leaders to speak to school students, but the question for the
> > > > Establishment Clause arena is always the context of the speech.  If the
> > > > school is bringing in a religious leader for the *purpose* of
> > > proselytizing
> > > > the school children, that is and ought to be plainly unconstitutional.
> > > If
> > > > the leader is there with religion as part of the talk, but with the
> > > purpose
> > > > not of proselytization but rather information, it ought to be
> > > permissible.
> > > > It's a case-by-case  judgment call.
> > > >
> > > > Marci
> > > >
> >



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