IV. Lesson Three: The Supreme Court Needs to Be More Serious About Its Review of Legislative Purpose in EqualProtection Discrimination Cases
In some areas of recent constitutional adjudication, such as in its recent establishment clause jurisprudence, the Supreme Court has had a serious and complex discussion about how it should review legislative purpose. Racial discrimination claims brought under the equal protection clause do not reflect a similar pattern. In many constitutional law texts, Yick Wo is paired with Gomillion v. Lightfoot to stand for the proposition that legislative purpose will be found invidious when the racially disparate impact is tantamount for all practical purposes to a mathematical demonstration that the legislature's purpose is to segregate people on the basis of race. There have been few cases, particularly since Batson v. Kentucky, which have attempted to define what the Supreme Court meant when it decided that discriminatory intent would be required for a constitutional violation in Washington v. Davis. The Court has since then been less than willing to seriously explore and discuss the kinds of evidence that will give rise to an inference, presumption, or finding of invidious legislative purpose. Perhaps the best we have are some references by the Court that attempt to give some vague definition to the substantive standard to be employed: for example, the Court's reference to animus or the bare desire to harm a politically unpopular group, a term that Justice Scalia rightly implies is ill-defined. Or we might look at the Feeney recitation that a legislature must pass a law because of its harmful impact on a disadvantaged group and not in spite of that impact. (As I will note, the 1970s cases Village of Arlington Heights and Batson v. Kentucky are among the few exceptions that do attempt to set standards.)
Over and over in its jurisprudence, the Court has acknowledged that legislative motivation is rarely clear or pure. Yet, it has failed, over time, to grapple in any realistic or disciplined way with the question of how invidious purpose can be identified and proven by plaintiffs, especially in those circumstances where everybody knows what the purpose of the law is but the legislative body has the good sense not to put the purpose of the law in the preamble.
Despite that lack of guidance, the principle Yick Wo is known for cannot be the constitutional standard: that rule suggests that if a law harms virtually everyone in one class (here, the Chinese laundrymen) and nobody in another (here, all of the White laundrymen except one), the Court should find discriminatory purpose. For one thing, such a standard gives a Court unwilling to protect minorities a good excuse to permit discriminatory business as usual. For example, in another discriminatory enforcement case, Ah Sin v. Wittman, the Supreme Court refused to invalidate selective police raids against Chinese gambling houses, distinguishing Yick Wo on the grounds that there was insufficient proof that such gambling did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not
Of course, it will not always be the case that a legislative body hell-bent on harming the plaintiff class will be successful in its aim if it uses only facially neutral statutes. The Chinese basket-carrier's law is a good example of this: when the court upheld the law prohibiting carrying poles on baskets on the sidewalk as a neutral exercise of the police power (much like an earlier prohibition of slaughterhouses in the city) and refused to take the discriminatory motive of the ordinance seriously, the response of the Chinese was simply to move their poles to the streets, or to carry a single basket without a pole. Thus, the supervisors' attempt to harass the Chinese in this way failed.
This willingness by the courts, including the Supreme Court, to turn a blind eye to racially discriminatory legislative motives and goals was all too evident in the Chinese cases, with significant consequences. That the legislature was populated by anti-Chinese members was easy to observe. For example, in the elections of 1879, the bottom of the ballot in San Francisco was printed with the words, Against Chinese Immigration. The California Supreme Court refused to see any invidious purpose in the early cases. Even though they invalidated it, they even refused to see animus in the Foreign Miners' License Tax that treated all resident foreigners of a mining district as miners, even though that law could not have been referring to anybody but the Chinese. While, as in the civil rights era, it is hard to prove cause and effect between state and federal Supreme Court decisions and legislative actions, these decisions failing to protect the Chinese were followed by law after law against the Chinese in California. Even after Congress acted to declare racial discrimination illegal in 1870, new measures passed in 1880 permitted cities to segregate the Chinese in their own ghettos in cities or move them outside of city boundaries, and refused them business and commercial fishing licenses. There were also legislative attempts to make it a felony for the Chinese to have an occupation, and to prohibit businesses from keeping books in languages other than English. Bills also attempted to impose a tax solely on Chinese residents collectible by the state militia, and tax the product used to make starch utilized in Chinese laundries, which allegedly gave them a competitive advantage in the industry.
Of more direct consequence, in a case reminiscent of the Supreme Court's sleight of hand in Plessy, the California Supreme Court refused to find invidious discrimination in California's separate but equal approach to Chinese testimony. In People v. Brady, which challenged the bar against Chinese witnesses testifying against White people, the California court reasoned that both Chinese and White criminals received the same punishment if they were convicted, and both could use the testimony of Whites while neither could use the testimony of Chinese witnesses. Because they could now not defend themselves in court, the California court essentially made it open season on Chinese miners and others who dared to cross the paths of resentful Whites.
The lengths to which state court judges went in order to avoid declaring that discriminatory intent motivated legislative bodies are, in retrospect, almost comical. County court Judge John Stanley, for example, rejected a discriminatory intent charge leveled against a laundry ordinance which required laundrymen who did not use a horse and wagon-- obviously directed at the Chinese who could not afford them--to pay a fifteen dollar license fee. Judge Stanley noted that he did not need to inquire about legislative motivation even though he acknowledged the discrimination against both launderers of lesser means and the Chinese. Rebuffing the challenge, he stated [s]uggestion has been made that the order was intended to apply primarily to a race of persons not expressly designated in it. However that may be, this Court has nothing to do with the secret motives or intentions of the body which passed the Even the newspapers admitted what judges like Stanley would not. The San Francisco Evening Bulletin reacted to the queue ordinance requiring the county jail to shave off the pigtails of all convicted prisoners, and to an ordinance requiring coroner permission to disinter the dead that was meant to harass the Chinese returning their family members' remains to China, by noting the deep humiliation these laws caused the Chinese.
In the early years, even federal judges in California were reluctant to impute invidious motives to the state legislature and local supervisors. When the defendants requested the court to take judicial notice of a discriminatory enforcement pattern against the Chinese in a boarding house ordinance, Judge Hoffman declared that the court had no right to inquire into the motives of the legislature and disclaimed any knowledge that the law in question was being enforced only against the In the same fashion, the U.S. Supreme Court in Ah Sin v. Wittman, faced with discriminatory enforcement of a gambling ordinance in a case reminiscent of Yick Wo, responded that the government would have no incentive in race or class prejudice or administration in race or class discrimination and suggested that a court would need to be certain of discriminatory intent before striking down any law because of it.
However, some ordinances evinced too much discriminatory motivation even for the federal judges to take. Judge Hoffman invalidated the humiliating queue ordinance both because it was a punishment the supervisors were not authorized to impose, and because it was class legislation directed at persons entitled to equal protection. In his opinion, Judge Hoffman stated:
[W]e cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men; and where an ordinance, though general in its terms, only operates upon a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may justly conclude that it was the intention of the body adopting it that it should have only such operation, and treat it accordingly.
Similarly, at a certain point, Judge Sawyer had enough, noting in Wo Lee:
If the facts . . . shown by the notorious public and municipal history of the times, indicate a purpose to drive out the Chinese laundrymen, and not merely to regulate the business for the public safety, does it not disclose a case of violation of the provisions of the fourteenth amendment to the national constitution, and of the treaty between the United States and China in more than one particular? . . . That it does mean prohibition, as to the Chinese, it seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the course of an active and aggressive branch of public opinion and of public notorious events. Can a court be blind to what must necessarily be known to every intelligent person in the state?
Finally, in In re Lee Sing, the San Francisco supervisors had passed the Bingham Ordinance, which would relocate any ethnic Chinese in San Francisco to a single area. Judge Sawyer held that its purpose, which should be apparent to anyone, was to forcibly drive out a whole community of 20,000 people, irrespective of their individual merits or situation.
Despite these few candid assessments, in most cases, both state and federal courts suggested their unwillingness to search the context and the persistence of legislative attempts to harm the Chinese. They turned a blind eye to discriminatory ordinances and discriminatory enforcement, even when the Chinese were repeat players before those courts, except in those cases where the law was so absurd that it was virtually impossible to find any other explanation for the law. These opinions are consistent with the intimations in Yick Wo and Gomillion--and indeed, the declaration in modern-day cases such as Romer v. Evans --that legislative motivation will be presumed to be benign unless there is no other reasonable explanation but discrimination for the law. While such a rule may well be appropriate in cases where an isolated piece of legislation comes before the courts in jurisdictions with no history of legislative targeting of a minority (as in most of the Court's rational basis decisions), it surely cannot be an appropriate rule when many cases before the courts evince a determination by the legislative body to disadvantage a minority class. For the courts to pretend, by reviewing these cases in isolation, that nothing untoward is going on in this jurisdiction is to invite further legislative punishment of the disadvantaged class and thus to be an accomplice in perpetuating evil against that class.
The task of searching legislative motivation is not as hard as it appears. Indeed, the Supreme Court has provided two fair and non-burdensome methods of determining whether the legislature is invidiously harming a plaintiff class. Justice Stevens puts it in a more complex way: the courts should examine whether an impartial lawmaker could logically believe the classification would serve a legitimate purpose that transcends the harm to the members of the disadvantaged
One of these methods is the factor approach of Arlington Heights, which combines subjective evidence such as legislative history statements and testimony by lawmakers with objective evidence such as departures from standard procedure and substantive changes. Coupled with a strong but rebuttable presumption of benign legislative intent, this approach should reveal those cases in which legislative motivation, though not described on the face of the law, is clearly invidious. With appropriate judicial review and more specific criteria, the Arlington Heights approach would protect legislatures against the concern that a court might invalidate legislation because of isolated legislative statements or disagreement with the substance of the law. The other approach that the federal courts have effectively used is the burden-shifting approach of Castaneda v. Partida and Batson v. Kentucky. This approach required the legislature to come up with evidence that its reasons were legitimate if there is clear disparate impact on the plaintiff class and some evidence, though not to the level of certainty that Yick Wo or Gomillion required, that there is some legislative hostility to a minority class.
It is not clear why the Court has refused to extend these approaches to all equal protection cases requiring discriminatory intent, even when they have proven useful in those cases where the Court has applied them. It is not even clear how the Court decides which cases to apply them in. But the Court's failure to consistently apply these rules becomes clear in many of its cases. Perhaps most prominently, the Court seemed to ignore these rulings in City of Mobile v. Bolden, in which case it rejected a significant amount of Arlington Heights factor evidence that suggested racially discriminatory gerrymandering, and in City of Richmond v. J.A. Croson Company, where the Court similarly brushed aside significant evidence of discriminatory exclusion of African American contractors from Richmond construction projects. This approach, which holds plaintiffs to a nearly impossible evidentiary burden in equal protection cases, stands in clear contrast to the willingness of members of the Rehnquist court to describe affirmative action facial classifications as odious and constitutionally on par with the more insidious and persistent attempts to harm a minority class demonstrated in the Chinese cases.