Saturday, January 14, 2006

Animus vs. moral disapproval

So under Romer, Kennedy said mere animus against a group (whether protected or not) failed the equal protection rational basis test: it might be a reasonable law, but it's not for a legitimate state interest. (The test as typically enunciated has both those elements at least implicitly, and frequently when it's failed the latter prong is what does the killin', right?)

Oddly, I think this implicitly reaffirmed Hardwick's holding that moral disapproval was a good enough basis to criminalize sodomy. Certainly there was a factual question over whether Amdt 2 was based on animus or was a kulturkampf, as Scalia put it. Overturning Amdt 2 because it showed animosity was a bigger factual finding but less jurisprudentially adventurous; Romer overturning Amdt 2 because mere moral disapproval isn't valid would have required less factual assumptions and been a far bigger holding.

Now what about Lawrence? Recall that the Lawrence majority struck down the Texas anti-sodomy law on substantive due process grounds, not using equal protection arguments, as O'Connor wanted. Lawrence stated that one could not demean gays, and that such an intimate and personal activity deserves privacy protection. Lawrence reconceives Bowers as merely the statement that there was no due process right to homosexual activity, rather than standing for the idea that moral disapproval is sufficient. But then it overturned both.

How useful and important is the ability to make laws that express moral disapproval? It gets bandied about by both sides: liberals say hate crime laws are symbolically important because they express the community's disgust; punitive damages are praised for the same reason; conservatives say legalizing marijuana would express tacit approval. Is the right to make such laws naturally abused and heirarchy-reinforcing, as Balkin says? Is it important to the foundation of society?

By the way: Scalia says in Romer that class (homosexual people) can be a stand-in for conduct (homosexual acts) when criminal sanctions are not at issue. Amar in 95 Mich L Rev 203 ("Romer's Rightness", on Romer and attainder, about which more later) says this is a vicious mean despicable dumb thing to say.

Kennedy in Lawrence (at 538): "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."

Of course, one of them is reasoning from class to conduct (and so Amdt 2 sought to disadvantage gays without showing an actual gay act), while the other reasons from conduct to class (gays as a class cannot be subject to moral disapproval). But it's unclear what moral difference the direction makes. The moral difference is that one ruling shields a disadvantaged class from discrimination, and the other one doesn't. Why Amar took such umbrage at Scalia's linkage, rather than his substance, is beyond me, unless the reason is deep in his theory of attainder.


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