WHAT IS NEUTRALITY? After some very worthwhile back-and-forth with John Rosenberg
, I've been thinking about the very basics of how the legislature can violate constitutional principles of neutrality, principles like the establishment clause, or, as currently constituted, the equal protection clause. The government doesn't have to be neutral all the time, but it does have to act neutrally in areas like race and gender and religion. (For purposes of this post, I'm going to talk about just race and religion) Especially in the race context, there used to be many who thought that equal protection meant the government couldn't discriminate in ways that harmed "discrete and insular minorities," while it could "discriminate" against majorities
to achieve certain objectives, because presumably in our democratic system majorities had the political clout to protect themselves. But though I hope some of that thinking comes back in ten years when the pendulum swings the other way, at the moment it's not the dominant view. Within the current thinking, the government must be neutral
in certain areas, and that's that.
Still, for all the praise of "neutrality" one hears, the term is not self-defining.
Different people mean different things when they say something is "neutral." Much of the real action and impassioned debate in current discrimination law today is about what it means for government action to be "neutral." Differing opinions on the vouchers case reflect these competing notions of neutrality. There are two basic ways a statute can possibly be non-neutral or discriminatory. It can have a non-neutral intent
, that is, the legislators pass it with the specific goal of hurting or helping a specific race or religion. Or, it can have a non-neutral effect
, that is, it hurts or helps some race or religion while having the opposite or no effect on others.
As I noted in a recent post
, current law is in general much more concerned with the neutrality of "intent". But since I'm talking about basic building blocks of what "neutral" means or could mean, I'm including consideration of non-neutral effects as well. Especially since John Rosenberg has suggested an "intent plus effects" test under which even laws of non-neutral intent would be permissible so long as the non-neutral effets were small (i.e., "under God" in the pledge), I've been thinking about combinations of intent and effects tests. Much of this is very basic, but I think it may be worthwhile -- at least for myself -- to lay it out somewhat systematically. The 2-by-2 matrix presents four possible ways of thinking about neutrality, considered below:
Under this test, the currently dominant test for neutrality, a statute is neutral if its intent is neutral, regardless of its effects. This makes good, common sense. Legislators take the world as they find it, and if they pass a race-neutral tax law that happens to take proportionately more money from people of Religion A than Religion B because members of Religion A happen to make more per capita, is that the legislature's problem? Indeed, if unintended effects
could result in the overruling of perfectly well-meaning legislation, legislatures might have trouble accomplishing anything.
But, how the heck do you tell what the legislature's "intent" was? One way is to look at the statute. If the statute says "Blacks don't get to vote", we know it has a non-neutral intent -- it said the word "Blacks." Some people think that as long as a statute doesn't explictly make some impermissible classification, it's neutral. But what if legislators start hiding their intent? Doing so is not very hard. Some legislatures figured out pretty quickly that poll taxes combined with a "grandfather clause" could be used to effectively disenfranchise Blacks without saying the word "Blacks" in the statute. I think even opponents of disparate impact thinking such as John Rosenberg would recognize such legislative disenfranchisement schemes as having a non-neutral intent. Yet, where do we get that intent from? It's not in the face of the statute. It might be in the legislative history -- though many people have reservations about overruling a law simply because some representative shot off his or her mouth -- but what if all the legislators simply said, regardless of what they believed in secret, that, "our intent is to help raise much-needed funds while simultaneously rewarding families who have shown a commitment to long-term participation in democratic institutions." Neutral statute, neutral legislative history, but we'd still strike it down, and have. "Intent alone" isn't perfect, and while current law mostly accepts this conception of "neutrality", I doubt it will ever go all the way there.
On the other hand, it also makes good common sense to say that there's more to life than what's on a piece of paper; goings-on in the real world matter too. It might seem pretty reasonable to only consider the effects of a statute when determining whether it is neutral. Indeed, doing so is, at least in some sense, downright practical. Who cares about something as intangible and difficult to pin down as intent, the line might go, when what really matters is what happens in the real world? If the statute hurts group A more than group B, that
is what non-neutrality means; whatever is going on in people's heads is just all not that important. One problem with this view is that it is very hard to disentangle disparate effects caused
by the statute from differences that simply exist for reasons outside the statute, though they manifest through the operation of the statute. Intent, at least that apparent "on the face" of the statute (in the statute's text), is much easier to detect than determining what effects really come from the statute itself. While it might seem weird to say that appearances are more important than actuality, that is in fact the very heart of democratic capitalism -- we're not a communist country, and the constitution that created our system does not demand actual equality, just formal equalty. Indeed, regardless of effects, intent should matter as well -- a statute that explicitly tries to keep minorities down but fails shouldn't be permissible, if for no other reason than the sake of appearances. Finally, there's the view that what really matters is not what actually happens but what is in the legislator's "hearts" when they were drafting the statute.
Intent plus Effects.
This is the approach John Rosenberg suggested: a statute must have non-neutral intent AND non-neutral effect to be struck down. In my opinion, I feel this is trying to have it both ways, as discussed in my previous post
; someone who so firmly believes a statute's disparate impact is irrelevant shouldn't be able to find a statute is permissible because it doesn't
have a disparate impact. It certainly is the least likely to find anything to be non-neutral. In effect, this view a presumption in favor of saying a statute is neutral. In any event, between my post and Rosenberg's excellent response
, the pros and cons of this combination have been covered, so I won't belabor them further here.
Intent or Effects.
Finally comes this hybrid approach. It accepts that intent matters, for discriminatory legislative intent is the true evil to be combatted in protecting formal equality, yet it also recognizes that intent can be easily hidden. Thus, something else must be used to get at that intent, and what else do we have but effects? Thus, it is not that unequal effects are bad -- actual inequality is a part of our system -- but that statutes that apply unequally can serve as a proxy for a hidden intent not apparent on the face of the statute. Legislators may often by sly, but they generally aren't stupid; they often have some sense of what effects a statute will have. Thus, effects can shed light on intent. Even if a grandfather clause statute (as discussed above) doesn't say the words "Blacks", the effect is so clearly discriminatory that those effects come pretty show non-neutral intent.
But there's a problem with this: it's too restrictive. Sure, it's good for stopping sneaky legislative end arounds. But it can also tie the legislature's hands. Lots of statutes have disparate effects even without impermissible intent. Striking down such statutes is something with which John Rosenberg -- and the current Supreme Court -- is quite troubled. And indeed, striking down statutes of neutral intent is something that should trouble everyone. But it's not the only
Assume that some statutes have disparate effects despite totally neutral intents. Though some would argue with this, I think such an assumption is pretty safe. But also assume that some statutes have non-neutral, discriminatory intents that are successfully hidden in facially neutral language. Though again some might disagree, I think this too is a safe assumption. So as between approach one (intent alone) and approach four (intent or effects), no matter which approach to neutrality we select, we will always have problems.
Under approch one, we will let in all the perfectly fine statutes that have a disparate impact but benign intent, but we will also allow statutes where non-neutral intent has been successfully hidden. Under approach four, we will strike down those statutes with hidden non-neutral intents, but we will be overly restrictive: all those statutes with benign intents that just happened to have disparate impacts will be struck down as well. Both results are ones which should trouble us.
How do we choose between these two, less-than-ideal results? Mostly, the choice depends on what you think is more important -- making sure not to allow laws with discriminatory intent in, or protecting laws with neutral intent, even if that means letting in some laws with hidden non-neutral intents. I can't say with certainty which situation is better -- different people feel differently about this -- but I can say I personally prefer nixing some neutral intent laws to make sure no non-neutral intent laws go by.
This adopts what is called a prophylactic rule
, and it is used routinely in other areas of law, where we're willing to risk stopping the government from doing permissible things to make sure it doesn't do bad things. For instance, it's often said that it's better that several guilty men go free than that one innocent man be found guilty, because an innocent being convicted is more offensive to our sense of justice than a guilty man going free. As a result, we have very high standards in the criminal justice system, we know it, and we generally accept it as OK. (See Sasha Volokh's simultaneously brilliant and hilarious n Guilty Men
). When it comes to racial classifications or religious, why not apply the same idea? Now, I know some will see this as favoring approach one ("Better that n
non-neutral statutes go free than for one neutral statute to be struck down."), and as most literally applied, I suppose it does. Nonetheless, I think thinking of neutrality in prophylactic terms most strongly supports approach four: Better that all statutes with non-neutral intent get struck down than that many are permitted for the sake of some statutes of neutral intent. Better that people be protected against discriminatory laws than that the government be protected against having some of its laws unfairly struck down. Taking equal protection and the principle of neutrality seriously seems, to me, well worth the cost of a few extra statutes not being passed. The legislature can always try again to achieve its legislative goals some other way, as many times as it likes.
Perhaps I am wrong, though: currently the first view, "intent alone," is ascendant. But it is not the only possible approach nor is it necessarily the best. I hope I have made some case that the fourth view, "intent or effects", at least some
effects, is not an absurd one either, but I realize it has flaws as well. Upholding the principle of neutrality is a difficult task which presents many tough problems. There's a reason we fight over it viciously and so endlessly. The debate between the competing views, especially between view one (intent alone) and view four (intent or effects), may be intractable. I hope I have identified some of the fracture lines and some of the tensions which plague this debate. I'm interested in hearing arguments as to why any one of the four approaches is better than the others -- or indeed, why I'm an idiot and totally wrong -- so if you have a view on any of this, I would love to hear from you.